Draffen v. Robert

Filing 25

ORDER denying as moot 24 MOTION for Certificate of Appealability, denying 20 MOTION for Leave to Appeal in forma pauperis filed by Joseph Leslie Draffen. Signed by Judge David R. Herndon on 1/16/15. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOSEPH LESLIE DRAFFEN,
Petitioner,
vs.
BRAD J. ROBERT,
Respondent.

Case No. 13-cv-1149-DRH

MEMORANDUM AND ORDER
HERNDON, District Judge:
This matter is before the Court on petitioner Joseph Leslie Draffen motions
for leave to appeal in forma pauperis (Doc. 20) without prepayment of the usual
$505.00 appellate docketing fee and for certificate of appealability (Doc. 24). See
28 U.S.C. § 1913; 28 U.S.C. § 191. On December 12, 2014, the Court dismissed
with prejudice Draffen’s petition for writ of habeas relief under 28 U.S.C. § 2254
(Doc. 17). On January 8, 2015, Draffen filed a notice of appeal (Doc. 19).
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 (IFP) 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.

In evaluating Draffen’s motion, the Court must determine whether the
appeal is taken in good faith. As to the good faith requirement, the Court must
“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); Lee v. Clinton, 209 F.3d
1025, 1026 (7th Cir. 2000). “[A]n appeal in a frivolous suit cannot be ‘in good
faith’ under § 1915(a)(3), because ‘good 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) (“[T]he granting of leave
to appeal in forma pauperis from the dismissal of a frivolous suit is
presumptively erroneous and indeed self-contradictory.”) 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, petitioner’s motion to proceed IFP fails because his
appeal is not taken in good faith. Draffen failed to claim any entitlement to
redress or include the issues that he intended to present on appeal, as required
by Fed. R. App. P. 24(a)(1). Further, the Court found that Draffen’s claim was
procedurally defaulted because petitioner presented his argument as a matter of
state law only. Petitioner’s state court pleadings fail to alert the state court of the
federal nature of his claim. Draffen’s failure to present a federal constitutional
argument in state court means that his federal constitutional arguments are
procedurally defaulted and cannot be considered. Bolton v. Akpore, 730 F.3d

685, 694-695 (7th Cir. 2013). As a result, no reasonable person could suppose
that this appeal has any merit. The Court therefore certifies that petitioner’s
appeal is not taken in good faith.
Accordingly, Draffen’s motion for leave to appeal in forma pauperis (Doc.
20) is DENIED. Petitioner shall tender the appellate filing and docketing fee of
$505.00 to the Clerk of Court in this District within TWENTY-ONE (21) days of
the date of entry of this order (on or before February 6, 2014), or he may reapply
to the Seventh Circuit Court of Appeals for leave to proceed in forma pauperis on
appeal. Petitioner’s motions for certificate of appealability (Doc. 24) is DENIED
as moot, as the Court's December 12, 2014 order dismissing the petition (Doc.
17) also denied a certificate of appealability.
Finally, the Clerk of the Court is DIRECTED to notify the Court of
Appeals for the Seventh Circuit of this order. See Fed. R. App. P. 24(a)(4).
IT IS SO ORDERED.
Signed this 16th day of January, 2015.

David R.
Herndon
2015.01.16
17:52:05 -06'00'
District Judge
United States District Court