Smith v. Godinez et al

Filing 16

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 2/1/2012.(mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MILTON SMITH #A81091,
Plaintiff,
v.
DIRECTOR S. A. GODINEZ,
Defendant.

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No.

11 C 6912

MEMORANDUM ORDER
Here is the self-explanatory opening paragraph in this
Court’s January 3, 2010 memorandum order (“Order”) that set out
the early background that has led up to the current posture of
this case:
This Court’s October 5, 2011 memorandum opinion and
order (“Opinion”) explained in detail the reasons for
its dismissal of the pro se 28 U.S.C. §2254 (“Section
2254”) Petition for Writ of Habeas Corpus (“Petition”)
by which Milton Smith (“Smith”) challenged his 1983
conviction on two murder charges on which he is
currently serving a 60-year custodial sentence. After
Smith filed a November 7 Notice of Appeal together with
his Request for Certificate of Appealability (“COA”),
this Court issued a brief November 9 statement
(“Statement”) that (1) held no COA should issue as to
Smith’s appeal and (2) advised Smith of his right to
tender that same issue to our Court of Appeals for its
consideration.
As the Order had then requested, Smith has now submitted a motion
and affidavit in support of his request to proceed in forma
pauperis on appeal, coupled with a printout of transactions in
his trust fund account at Tamms Correctional Center, where he is
serving his sentence.
But the possibility of in forma pauperis treatment is

dependent not only on a litigant’s showing of financial inability
to pay a filing fee--in this instance $455 in appellate filing
fees--but also on the advancement of a nonfrivolous argument (in
the legal sense).

And the latter threshold hurdle is one at

which Smith falls, for the same reasons that led to this Court’s
denial of Smith’s request for a COA also buttress a corresponding
determination as to his substantive claim.
Accordingly this Court denies Smith’s request for in forma
pauperis treatment on appeal.

Smith is advised, however, that he

may address the same question directly to the Court of Appeals.

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Milton I. Shadur
Senior United States District Judge
Date:

February 1, 2012

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