Ballinger v. USA

Filing 20

ORDER, denying 17 MOTION for Certificate of Appealability, 18 MOTION for Leave to Appeal in forma pauperis, 19 MOTION to Appoint Counsel filed by Steven Ballinger. Signed by Judge David R. Herndon on 7/14/16. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
STEVEN BALLINGER,
Petitioner,

Civil Case No. 13-cv-537-DRH

v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM and ORDER
HERNDON, District Judge:
This matter is before the Court on Petitioner Steven Ballinger’s motions
relating to his appeal of the Court’s order denying his 28 U.S.C. § 2255 petition.
Specificially, Ballinger filed a motion for certificate of appealability (Doc. 17),
motion for leave to appeal in forma pauperis (Doc. 18) and motion to appoint
counsel (Doc. 19). The Court previously denied Ballinger’s 28 U.S.C. § 2255
petition, dismissed his case with prejudice, and declined to issue a certificate of
appealability (Doc. 14). Judgement reflecting the same was entered the following
day on May 12, 2016 (Doc. 15). On July 11, 2016, Ballinger filed a notice of
appeal (Doc. 16) along with the motions at issue. Based on the following, the
Court denies the motions.
1. Motion for Certificate of Appealability (Doc. 17)
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
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right.” This requirement has been interpreted by the Supreme Court to mean that
an applicant must show that “reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Thus, Ballinger need not show that his appeal will
succeed, but he must show “something more than the absence of frivolity” or the
existence of mere “good faith” on his part. Miller–El v. Cockrell, 537 U.S. 322,
337, 338 (2003). If the district court denies the request, a petitioner may request
that a circuit judge issue the certificate of appealability. FED. R. APP. P. 22(b)(1)(3).
For the reasons detailed in the Court’s order denying Ballinger’s 28 U.S.C.
§ 2255 petition issued on May 11, 2016 (Doc. 14), the Court has determined that
Ballinger has not made “a substantial showing of the denial of a constitutional
right.” Accordingly, Ballinger request for a certificate of appealability is DENIED.
2. Motion for Leave to Appeal i n forma pauperis (Doc. 18)
Rule 24 of the Federal Rules of Appellate Procedure provides that a party to
an action in federal district court who desires to appeal in forma pauperis must
first file a motion in the district court requesting leave to appeal without payment
of fees and costs. See FED. R. APP. P. 24(a)(1). The motion must be supported by
an affidavit that: (1) shows the party’s inability to pay or to give security for fees
and costs; (2) claims an entitlement to redress; and (3) states the issues that the
party intends to present on appeal. See id. “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). As to the good faith requirement, the Court must “find that a
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reasonable person could suppose that the appeal has some merit.” Walker v.

O’Brien, 216 F.3d 626, 632 (7th Cir. 2000); Lee v. Clinton, 209 F.3d 1025, 1026
(7th Cir. 2000). That said, a district court is under an obligation “not to apply an
inappropriately high standard when making good faith determinations.” Pate v.

Stevens, 163 F.3d 437, 438 (7th Cir. 1998).
In the case at bar, the Court finds that Ballinger’s appeal is not taken in
good faith. In denying and dismissing Ballinger’s 28 U.S.C. § 2255 petition, the
Court found that his claims of ineffective assistance of counsel were without
merit. Moreover, Ballinger’s numerous arguments with respect to his guilty plea,
speedy trial delays, prosecutorial misconduct, and alleged misrepresentations
surrounding his sentencing were made before the Seventh Circuit Court of
Appeals and were previously decided against Ballinger. See USA v. Steven

Ballinger, No. 11-2786. Thus, these arguments were procedurally barred. The
Court also determined that Ballinger’s remaining arguments relating to his
indictment were available to be raised on direct appeal, and were barred.
Under the standard set forth above, the Court cannot say that Ballinger’s
motion for leave to appeal in forma pauperis is in good faith. Perrone’s appeal is
thus determined to be in bad faith and he has failed to meet the requirements of
Fed. R. App. P. 24(a)91). Accordingly, his motion is DENIED. Ballinger shall
tender the appellate filing and docketing fee of $505.00 to the Clerk of the Court
on or before August 4, 2016, or he may reapply to the Seventh Circuit Court of
Appeals for leave to proceed in forma pauperis on appeal.
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3. Motion to Appoint Counsel (Doc. 19)
Looking now to Ballinger’s motion for appointment of counsel on appeal
(Doc. 19), the Court does not have the authority to appoint counsel for appeal
purposes in light of the fact that Ballinger filed a notice of appeal on July 11,
2016 (Doc. 16). The filing of said notice of appeal transferred jurisdiction of this
case to the Seventh Circuit Court of Appeals. Therefore Ballinger should re-file the
motion to appoint counsel with the Seventh Circuit Court of Appeals. Accordingly,
his motion is DENIED for lack of jurisdiction.
IT IS SO ORDERED.
Signed this 14th day of July, 2016.

Digitally signed by
Judge David R.
Herndon
Date: 2016.07.14
10:24:33 -05'00'
United States District Judge

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