Dortch v. State of Minnesota
- John Tunheim
- 0:22-cv-01199
- U.S. District Court · District of Minnesota
- 5
In Dortch v. State of Minnesota, Judge Tunheim denied Dortch’s application to appeal without paying the filing fee because the court deemed the appeal frivolous.
Tim Davin Dortch’s request to appeal the denial of his federal petition without paying the appellate filing fee was denied; the order did not decide new issues about his convictions.
What happened
In Dortch v. State of Minnesota, Tim Davin Dortch sought federal review of his state convictions after a retrial. He argued that the retrial violated his rights, including protection against being tried twice for the same offense.
The federal court had denied his petition and refused to issue a certificate allowing an appeal. Dortch then asked to appeal without paying the filing fee.
Judge Tunheim denied that application, finding that the appeal was not taken in good faith because it was legally frivolous. This order addressed the filing-fee request, not the underlying conviction claims.
The detailed version
- Dortch v. State of Minnesota · No. 0:22-cv-01199
- John Tunheim
- Mar. 22, 2023
Background
Tim Davin Dortch, representing himself, petitioned under 28 U.S.C. § 2254 for federal review of his state convictions. His first conviction had been reversed because the state appellate court found structural error involving his attorney’s violation of his Sixth Amendment right to autonomy. After a retrial, Dortch was convicted again and sentenced to 193 months’ imprisonment. The state appellate court rejected his challenges to the retrial and convictions, although it vacated his second-degree assault conviction because it was included in the first-degree assault conviction.
Dortch later argued in federal court that the retrial violated the Double Jeopardy Clause and other federal and state rights. The district court denied his petition because the state-law claims were not appropriate for this type of federal petition and the federal claims were either not unreasonably decided by the state court or had not been exhausted. The court also refused to issue a certificate of appealability, which is required for a § 2254 petitioner to appeal the denial of the petition.
Application to Proceed Without Paying the Filing Fee
Dortch appealed to the Eighth Circuit and applied to proceed in forma pauperis, meaning without paying the full appellate filing fee. Under 28 U.S.C. § 1915, a court may deny that status even to a person who cannot afford the fee if the appeal is not taken in good faith. The court explained that an appeal is not taken in good faith when it presents no nonfrivolous issue and lacks an arguable basis in law or fact.
The court found that Dortch’s appeal was frivolous because it had refused to issue a certificate of appealability after finding that he had not made a substantial showing that a constitutional right had been denied. Based on that finding, the court concluded that the appeal was not taken in good faith.
Disposition
The court denied Dortch’s Application to Proceed In Forma Pauperis on Appeal, Docket No. 44. The order did not revisit the merits of his underlying petition or his state convictions.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.