Penrod v. United States

Filing 28

MEMORANDUM AND OPINION, Granting 26 MOTION for Leave to Appeal in forma pauperis without prepayment of fees and costs filed by John S Penrod.Signed by Judge J. Phil Gilbert on 2/6/08. (bkl)

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Penrod v. United States Doc. 28 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS JOHN S. PENROD, Petitioner, v. UNITED STATES OF AMERICA, Respondent. Case No. 07-cv-02-JPG MEMORANDUM AND ORDER This matter comes before the Court on petitioner John S. Penrod's ("Penrod") motion for leave to appeal in forma pauperis (Doc. 26). Penrod appeals the Court's denial of his motion to vacate his sentence pursuant to 28 U.S.C. 2255. A federal court may permit a party to proceed on appeal without full pre-payment of fees provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. 1915(a)(3); Fed. R. App. P. 24(a)(3). A frivolous appeal cannot be made in good faith. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). The test for determining if an appeal is in good faith or not frivolous is whether any of the legal points are reasonably arguable on their merits. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 386 U.S. 738 (1967)); Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000). The Court is satisfied from Penrod's affidavit that he is indigent. Furthermore, the Court does not believe that this appeal is in bad faith. Therefore, the Court GRANTS the motion to proceed on appeal in forma pauperis without prepayment of fees and costs (Doc. 26). IT IS SO ORDERED. DATED: February 6, 2008 s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE

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