Goss v. United States of America

Filing 11

Certificate of Appealability Denied re 7 Notice of Appeal; denying 8 MOTION for Leave to Appeal in forma pauperis filed by Fredrick O. Goss. Signed by Chief Judge David R. Herndon on 2/5/10. (eed)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS FREDRICK O. GOSS, Petitioner/Defendant, vs. UNITED STATES of AMERICA , Respondent/Plaintiff. ) ) ) ) ) ) ) ) )

CIVIL NO. 09-cv-321-DRH CRIMINAL NO. 06-cr-40062

MEMORANDUM AND ORDER HERNDON, Chief Judge: The Court denied Petitioner Fredrick Goss's motion under § 2255, finding that he waived any right to bring a Section 2255 motion to challenge his sentence. Goss appeals from that ruling, and implicit in his notice of appeal is a request for issuance of a certificate of appealability. Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Further, Section 2253(c)(3) provides: "The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2)." In his appeal and supporting memorandum (Doc. 7), Goss offers no argument to challenge the Court's conclusion that he waived his right to file such a challenge to his sentence. Instead, he simply reiterates the issues raised in his motion as grounds for appeal. However, the Court finds that Goss has not made "a substantial showing of the denial of a constitutional right." Accordingly, the Court DECLINES to issue a certificate of appealability.

Also before the Court is Goss's motion for leave to proceed in forma pauperis on appeal (Doc. 8). "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). An appellant is "acting in bad faith in the more common legal meaning of the term . . . [when he sues] . . . on the basis of a frivolous claim, which is to say a claim that no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). As stated above, the Court denied Goss's motion under § 2255, finding that he waived any right to bring a Section 2255 motion to challenge his sentence. In his appeal, Goss offers no argument to challenge the Court's conclusion that he waived his right to file such a challenge to his sentence. Therefore, the Court CERTIFIES that this appeal is not taken in good faith; accordingly, leave to proceed in forma pauperis on appeal is DENIED. Goss shall tender the appellate filing and docketing fee of $455 to the Clerk of Court in this District, or he may reapply to the Seventh Circuit Court of Appeals for leave to proceed in forma pauperis on appeal. IT IS SO ORDERED. DATED: February 5, 2010. /s/ DavidRHerndon CHIEF JUDGE UNITED STATES DISTRICT COURT

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