United States District Court, W.D. Tennessee, Western Division
ORDER DISMISSING AMENDED COMPLAINT, CERTIFYING AN
APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING
PLAINTIFF OF APPELLATE FILING FEE
D. TODD UNITED STATES DISTRICT JUDGE
August 1, 2019, this Court dismissed Plaintiff Michael
Deshawn Smith's pro se complaint under 42 U.S.C.
§ 1983 and granted leave to amend. (ECF No. 15.) On
August 7, 2019, Smith timely filed an amended complaint. (ECF
No. 16.) The amended complaint does not specify the
Defendants Smith seeks to sue.
amended complaint, Smith alleges new facts related only to
his claim that he was denied access to the courts. He alleges
that “legal documents essential to a pending
appeal” were destroyed by prison
officials. (ECF No. 16 at PageID 81.) The documents
were letters between Smith and his state post-conviction
counsel that he sought to use as evidence in a federal habeas
corpus action under 28 U.S.C. § 2254 to overcome his
failure to exhaust claims raised in that petition.
(Id. at PageID 81-82.)
first letter was sent to Smith from David Stowers,
Smith's first state post-conviction attorney.
(Id. at PageID 81.) Smith alleges that Stowers
failed to raise certain issues in Smith's post-conviction
petition and at an evidentiary hearing held in the state
court. (Id.) Smith alleges that in the letter,
Stowers incorrectly advised Smith that he would be granted a
“delayed appeal, ” which would “start
over” the appeal process and allow Smith to file a new
petition for post-conviction relief that included the
defaulted claims. (Id.) Smith alleges that he was
not granted a delayed appeal, and the federal habeas court
determined that his issues were procedurally defaulted.
(Id. at PageID 81-82.) Smith contends that the
letter demonstrates Stowers's ineffective assistance,
which should have provided a basis to excuse his procedural
second letter is between Smith and his second post-conviction
attorney, Andrea Sipes Lester. (Id. at PageID 82.)
In that letter, Smith alleges, Lester advised Smith that he
could not raise in his state post-conviction appeal the
issues that Stowers failed to raise in the post-conviction
petition because those issues “were not argued at
evidentiary hearing nor included on appeal.”
(Id.) Smith alleges that without these two letters,
he was unable to “present the burden of proof needed to
overcome procedural default, ” and the federal court
denied his § 2254 petition. (Id. at PageID
legal standards for assessing the claims in an inmate's
complaint were set forth in the prior order of dismissal,
(ECF No. 15 at PageID 69-70), and will not be reiterated
does not describe the issues that Stowers failed to include
in Smith's post-conviction petition. In his § 2254
petition, Smith challenged the voluntariness of his guilty
plea and the effectiveness of his trial counsel. See
Smith, No. 2:15-cv-02195-SHL-dkv, ECF No. 27 at PageID
894. The habeas court noted that Smith failed to raise his
challenge to his guilty plea on direct appeal; did raise it
in his post-conviction petition, but the state court denied
it on the merits; and then failed to raise it in his
post-conviction appeal. Id. at PageID 897. The
habeas court then reviewed Smith's contention that
Stowers failed to raise the issue at the evidentiary hearing
and concluded that, “This would not result in the issue
having been ‘procedurally defaulted.'”
Id. at PageID 898 n.1. The court also concluded that
any failure to raise the issue in Smith's post-conviction
appeal would be attributable to his post-conviction appellate
counsel and could not excuse his procedural default.
Id. at PageID 898-99.
raised six grounds to challenge the effectiveness of his
trial counsel. The habeas court concluded that five of these
grounds were procedurally defaulted because Smith failed to
raise them in his post-conviction appeal. Id. at
PageID 899-900. The court also concluded that Smith could not
overcome the procedural default because the
ineffective-assistance claims he sought to raise were not
“substantial” and lacked sufficient merit.
Id. at PageID 900. The court denied Smith's
sixth ground on the merits. Id. at PageID 906-09.
fails to adequately plead a claim that he was denied access
to the courts. Smith must show that destruction of the
letters caused him “‘actual injury,' i.e.,
that the conduct hindered his efforts to pursue a
nonfrivolous legal claim.” (ECF No. 15 at PageID 75-76
(quoting Rodgers v. Hawley, 14 Fed.Appx. 403, 409
(6th Cir. 2001), and citing Thaddeus-X v. Blatter,
175 F.3d 378, 394 (6th Cir. 1999) (en banc)). Smith was able
to present his argument against procedural default in the
habeas court. The letters that Smith alleges were destroyed
would not have aided that argument because, as the habeas
court concluded, Smith failed to raise his issues on direct
appeal and/or on post-conviction appeal. Stowers was not
Smith's attorney at either of those stages, so the letter
suggesting Stowers rendered ineffective assistance at the
trial level of Smith's post-conviction proceedings is
irrelevant. Lester was Smith's attorney only for his
post-conviction appeal. Because the issues he sought to raise
were procedurally defaulted before that appeal, Lester could
not have raised them in Smith's post-conviction appeal.
Moreover, as the habeas court noted, ineffective assistance
of post-conviction appellate counsel is not a ground
to excuse procedural default. See Smith, No.
2:15-cv-02195-SHL-dkv, ECF No. 27 at PageID 898-99. Smith has
therefore failed to show that the destruction of his legal
documents caused him “actual injury” in his
federal habeas corpus case.
conclusion, the Court DISMISSES Smith's complaint for
failure to state a claim on which relief can be granted,
pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1). Leave to further amend is DENIED.
to 28 U.S.C. § 1915(a)(3), the Court must also consider
whether an appeal by Smith in this case would be taken in
good faith. The good faith standard is an objective one.
Coppedge v. United States, 369 U.S. 438, 445 (1962).
It would be inconsistent for a district court to determine
that a complaint should be dismissed prior to service on the
Defendants but has sufficient merit to support an appeal
in forma pauperis. See Williams v. Kullman,
722 F.2d 1048, 1050 n.1 (2d Cir. 1983). The same
considerations that lead the Court to dismiss this case for
failure to state a claim also compel the conclusion that an
appeal would not be taken in good faith.
Court must also address the assessment of the $505 appellate
filing fee if Smith nevertheless appeals the dismissal of
this case. A certification that an appeal is not taken in
good faith does not affect an indigent prisoner
plaintiff's ability to take advantage of the installment
procedures contained in § 1915(b). See McGore v.
Wrigglesworth, 114 F.3d 601, 610-11 (6th Cir. 1997),
partially overruled on other grounds by LaFountain v.
Harry, 716 F.3d 944, 951 (6th Cir. 2013).
McGore sets out specific procedures for implementing
the PLRA, §§ 1915(a)-(b).
Smith is instructed that if he wishes to take advantage of
the installment procedures for paying the appellate filing
fee, he must comply with the procedures set out in the PLRA
and McGore by filing an updated in forma
pauperis affidavit and a current, certified copy of his
inmate trust account for the six months immediately preceding
the filing of the notice of appeal.
analysis under 28 U.S.C. § 1915(g) of future filings, if
any, by Smith, this is the first dismissal of one of his
cases as frivolous or for failure to state a claim. This
strike shall take effect when judgment is ...