Latham v. USA

Filing 60

MEMORANDUM AND OPINION, Certificate of Appealability Denied re 57 Notice of Appeal, Granting 58 MOTION for Leave to Appeal in forma pauperis filed by Kendrick D Latham. Signed by Judge J. Phil Gilbert on 3/24/09. (bkl)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS KENDRICK D. LATHAM, Petitioner, v. UNITED STATES OF AMERICA, Respondent. MEMORANDUM AND ORDER I. Certificate of Appealability Pursuant to Federal Rule of Appellate Procedure 22(b)(1), the Court construes petitioner Kendrick Latham's notice of appeal (Doc. 57) as a request for a certificate of appealability. See Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). A § 2255 petitioner may not proceed on appeal without a certificate of appealability. 28 U.S.C. § 2253(c)(1); see Ouska, 246 F.3d at 1045. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska, 246 F.3d at 1045. To make such a showing, the petitioner must "demonstrate that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have been resolved in a different manner or that the issue presented was adequate to deserve encouragement to proceed further." Ouska, 246 F.3d at 1046; accord Tennard, 542 U.S. at 282; Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability should issue if the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.") The Court finds that Latham has not made such a showing and, accordingly, DECLINES to issue a certificate of appealability. Case No. 04-cv-4086-JPG

II.

Motion for Leave to Appeal In Forma Pauperis (Doc. 58) A federal court may permit a party to proceed on appeal without full pre-payment of fees

provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). A frivolous appeal cannot be made in good faith. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). The test for determining if an appeal is in good faith or not frivolous is whether any of the legal points are reasonably arguable on their merits. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 386 U.S. 738 (1967)); Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000). The Court is satisfied from Latham's affidavit that he is indigent. Furthermore, the Court does not believe that this action is frivolous or malicious. Therefore, the Court GRANTS the motion to proceed on appeal in forma pauperis without prepayment of fees and costs (Doc. 58). IT IS SO ORDERED. DATED: March 24, 2009 s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE

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