Russell v. USA

Filing 53

ORDER denying 49 Motion for Certificate of Appealability and denying 50 Motion for Leave to Appeal in forma pauperis. Signed by Chief Judge David R. Herndon on 9/25/13. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNEDY M. RUSSELL, SR.,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 12-1016-DRH
MEMORANDUM and ORDER

HERNDON, Chief Judge:
Pending before the Court is Russell’s September 24, 2013 notice of appeal
(Doc. 48) which contains a request for certificate of appealability (Doc. 49) and a
request to proceed informa pauperis on appeal (Doc. 50).

In this Notice of

Appeal, Russell states that he is appealing “the Trial Court’s, Final Judgment, in
error, in imposition of ‘restitution’ in the above described matter.” 1 Based on the
following, the Court declines to issue a certificate of appealability and denies the
request to proceed in forma pauperis on appeal.
Before addressing the merits, the Court provides the following as a way of
brief background. This is a 28 U.S.C. § 2255 proceeding in which a final order
and judgment have not been entered. The Court notes that this is Russell’s third
notice of appeal in this proceeding. The Seventh Circuit has issued Mandates as
to the first two appeals (Docs. 32 & 46). In addition to these appeals, Russell

The caption of the notice of appeal contains this civil cause number and Russell’s criminal cause
number, 10-30196-DRH. Thus, the notice of appeal had to be filed in both cases.

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filed a petition for writ of Mandamus with the Seventh Circuit on September 13,
2013 (Doc. 47). He has also filed a motion for declaratory judgment and a motion
challenging the jurisdiction of this Court in this proceeding (Docs. 42 & 45). In
addition to this case, Russell continually files motions in his closed criminal case.
See United States v. Russell, 10-30196-DRH.
As to the certificate of appealability, the Court declines to issue one as
Russell is not entitled to one. Rule 11(a) of the Rules Governing habeas corpus
proceedings requires that “the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” The Court will
issue such a certificate, however, “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
standard is met when “reasonable jurists could debate whether ... the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Barefoot v. Estelle, 463 U.S.
880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).
Here, the Court has neither issued a final order nor has entered an order
regarding restitution. Therefore, the Court declines to certify this issue for appeal
pursuant to 28 U.S.C. § 2253(c)(2).
Next, the Court denies the motion to proceed in forma pauperis on appeal
based on the same reasoning. 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.

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'1915(a)(3). A plaintiff is Aacting 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). Further, Aan appeal in a frivolous
suit cannot be >in good faith= under '1915(a)(3), because Agood faith@ must be
viewed objectively.@ Moran v. Sondalle, 218 F.3d 647, 650 (7th Cir. 2000). See
also Lee, 209 F.3d at 1026; Tolefree v. Cudahy, 49 F.3d 1243, 1244 (7th Cir.
1995) (A[T]he granting of leave to appeal in forma pauperis from the dismissal of a
frivolous suit is presumptively erroneous and indeed self-contradictory.@)
Here, there is nothing to appeal from regarding restitution or anything
other issue at this point. Therefore, the Court CERTIFIES that this appeal is not
taken in good faith. Accordingly, the Court DENIES the motion for certificate of
appealability (Doc. 49) and the motion for leave to proceed in forma pauperis
(Doc. 50). Russell 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.
Signed this 25th day of September, 2013.

Digitally signed by
David R. Herndon
Date: 2013.09.25
12:45:38 -05'00'

Chief Judge
United States District Court

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