Fitts v. Gaetz

Filing 57

ORDER DENYING 53 MOTION for Leave to Appeal in forma pauperis filed by Dennis Fitts; DENYING AS MOOT 52 MOTION for Certificate of Appealability filed by Dennis Fitts. Signed by Judge David R. Herndon on 5/22/2018. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENNIS FITTS,
Petitioner,
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No. 10-00494-DRH –DGW

JACQUELINE LASHBROOK ,
Respondent.

MEMORANDUM and ORDER

HERNDON, District Judge:
Pending before the Court is petitioner Fitts’ latest motion to proceed in
forma pauperis on appeal (doc. 53) and motion for certificate of appealability
(doc. 52). On September 26, 2013, the Court denied and dismissed Fitts’ 28
U.S.C. § 2254 petition with prejudice (doc. 21) and the Clerk of the Court entered
judgment reflecting the same (doc. 22). On October 23, 2013, petitioner Fitts
filed his original notice of appeal (doc. 23) along with his original motion for
certificate of appealability (doc. 24).

On October 31, 2013, the Court declined to

issue a certificate of appealability, (doc. 27), finding that Fitts could make no
substantial showing of a denial of a constitutional right as the non-procedurally
defaulted claim was “not debatable among jurists of reason.” On May 13, 2014,
the Seventh Circuit Court of Appeals, construing it as an application for certificate
of appealability, denied Fitts’ original notice of appeal (appellate case no. 13-3433)
and issued its mandate on June 4, 2014. See doc. 39.
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Jacqueline Lashbrook, as the current Warden at Menard Correctional Center, has been
substituted above as the proper respondent.

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No further activity occurred in the district court’s docket, or the appellate
court’s docket, until February 8, 2018, when petitioner Fitts filed his second
notice of appeal and second motions for leave to appeal in forma pauperis (doc.
42) and for issuance of a certificate of appealability (doc. 43), which this Court
both denied on February 27, 2018 (doc. 48). In that denial Order, the Court
explained that per 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith.” Id.
To determine when an appeal is taken in good faith, the Court “need only find that
a reasonable person could suppose that the appeal has some merit.” Walker v.
O’Brien, 216 F.3d 626, 632 (7th Cir. 2000) (citing Lee v. Clinton, 209 F.3d 1025,
026 (7th Cir. 2000)).

The Court found that “no reasonable person could reach

the conclusion that the [second] appeal is taken in good faith as the Court has
already found one of Fitts’ claims to be procedurally defaulted and the other to be
meritless.” Doc. 48 at 2. Additionally, the claims were untimely by a period of
four years. See also, Show Cause Order of Seventh Circuit Court of Appeals, no.
18-1329, doc. 2 stating (“In this case judgment was entered on September 26,
2013, and the notice of appeal (petitioner’s second in this case – see Appeal No.
13-3433) was filed . . . well over four years late . . . IT IS SO ORDERED that
appellant . . . file a brief memorandum stating why this appeal should not be
dismissed for lack of jurisdiction.”). Thus, the Court denied the motion for leave
to appeal in forma pauperis (doc. 42) and denied as moot the motion for

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certificate of appealability (doc. 43), as the Court had already previously declined
the certificate. Doc. 48 at 3.
Now, petitioner has filed a third notice of appeal (doc. 50), his second this
year, along with his third motion for leave to appeal in forma pauperis (doc. 53)
and third motion for certificate of appealability (doc. 52).

The motions are

DENIED. To begin, the motion for certificate of appealability directly mirrors the
one recently denied on February 27, 2018, except for a Jurisdictional
Memorandum attached at the end. The Court is apt to believe this memorandum
was submitted in response to the directives by the Seventh Circuit Court of
Appeals given in petitioner’s second appellate case, no. 18-1329, in which the
Seventh Circuit twice directed petitioner to state why his case should not be
dismissed for lack of jurisdiction. See appellate docket no. 18-1329, docs. 2;8.
Instead of filing the jurisdictional memorandum with the appellate court at the
appropriate time, petitioner moved to dismiss his case, id. at doc. 9, which the
Seventh Circuit did on March 19, 2018. Id. at doc. 10.
No facts have changed in the time between petitioner’s second and third
appeals that would alter this Court’s decision to deny his pending motions. The
third appeal is a duplicate of the appeal petitioner recently dismissed in the
Seventh Circuit and this Court has not granted any extension for the appeals
period under Federal Rule of Appellate Procedure 4(a)(5), nor has petitioner
shown any procedural reason why he should be permitted to bring three

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successive appeals without ever filing for a writ of certiorari with the Supreme
Court2.
Accordingly, it is HEREBY ORDERED that petitioner Fitts’ motion for leave
to proceed in forma pauperis (doc. 53) is DENIED. Petitioner Fitts shall tender
the appellate filing and docketing fee of $505.00 to the Clerk of the Court in this
District within THIRTY (30) days of the date of the entry of this Order or he may
reapply with the Seventh Circuit Court of Appeals for leave to proceed in forma
pauperis on appeal. Again, the Court DENIES as moot the motion for certificate
of appealability (doc. 52) as the Court has twice declined the certificate.
IT IS SO ORDERED.

Judge Herndon
2018.05.22
14:35:08 -05'00'
United States District Judge

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As the Court noted in its February 27, 2018 Order, is possible that petitioner Fitts believes he
has filed a successive section 2254 petition, opposed to an appeal of the district court’s Order
denying his original 2254 petition. Regardless of if that is true, petitioner has not followed the
procedure dictated by 28 U.S.C. § 2244 for filing a successive section 2254 petition, in that Fitts
has not presented a new rule of constitutional law or new facts underlying his case nor has he
sought an order from the appropriate court of appeals authorizing the district court to consider
the second application. See 28 U.S.C. § 2244 2(A) and (B) and § 2244 3(A).

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