Jenkins v. USA

Filing 26

ORDER denying 25 Motion for Leave to Appeal in forma pauperis. Signed by Judge David R. Herndon on 7/25/2018. (ceh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANTWON D. JENKINS,
Petitioner,

UNITED STATES OF AMERICA,

No. 3:18-cv-610-DRH

Respondent.
MEMORANDUM and ORDER
HERNDON, District Judge:
Before the Court is petitioner Antwon Jenkins’ (“petitioner”) Motion for
Leave to Appeal in Forma Pauperis. [Doc. 25]. On April 12, 2018, the Court
denied petitioner’s Motion for Release on Bond (doc. 6), explaining that despite
petitioner’s contentions to the contrary, a pending appeal to the Supreme Court of
the United States regarding petitioner’s unrelated criminal case does not justify
release on bond due to petitioner’s conviction of numerous other crimes. See
doc. 7 (“Regardless of petitioner’s beliefs, if the appellate court’s decision in
dismissing Count 2 from petitioner’s unrelated criminal case, 3:12-cr-30239DRH-1, is affirmed, petitioner will not be released from prison. Whatever the
outcome of the government’s appeal to the Supreme Court of the United States,
petitioner will still be serving a term of imprisonment for his kidnapping
conviction (Count 1), in which he was sentenced to 188 months to run
consecutively to the count under review”).

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The Court further denied

supplementation of the same argument to petitioner’s current section 2255
motion, as the nature of such is unrelated to the basis for bringing the 2255
petition. Id.
Petitioner filed a notice of appeal of the April 12th Order on April 23, 2018
(doc. 8). His motion for leave to appeal in forma pauperis (“IFP”) was filed on
July 23, 2018 (doc. 25). Based on the following, the Court DENIES the motion to
proceed in forma pauperis on appeal.
Rule 24 of the Federal Rules of Appellate Procedure provides that a party to
an action in federal district court who desires to appeal 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. An appeal may not be taken IFP if the
district court certifies in writing that the appeal is not taken in good faith. See 28
U.S.C.§ 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 444 (1962). An
appeal is in good faith if it raises legal points that are reasonably arguable on their
merits.

See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v.

California, 386 U.S. 738, 744 (1967)). To appeal in bad faith, on the other hand,
means to appeal “on the basis of a frivolous claim, which is to say a claim that no
reasonable person could suppose have any merit.” Lee v. Clinton, 209 F.3d 1025,
1026 (7th Cir. 2000).

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The Court will not address the question of whether petitioner is indigent
because petitioner’s appeal is not taken in good faith.

No reasonable person

could reach the conclusion that the appeal is taken in good faith as the Court
found the basis of petitioner’s motion for bond to be meritless and unrelated to
the pending section 2255 petition. Thus his motion fails to meet the criteria set
out in Fed. R. App. P. 24(a)(1). As petitioner has failed to set out a reasonably
arguable legal position, the Court presumes that the appeal is taken in bad faith.
Accordingly, the Court DENIES petitioner’s request for leave to proceed IFP
on appeal (doc. 25) and certifies that his appeal is not taken in good faith.
Petitioner 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.
IT IS SO ORDERED.

Judge Herndon
2018.07.25
15:12:35 -05'00'
United States District Judge

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