Aldridge v Uited States of America
Filing
5
OPINION AND ORDER as to Larry Aldridge construing 3 Notice of Appeal as a Motion for Certificate of Appealability and Motion to Appeal In Forma Pauperis and DENYING both motions.. Signed by Judge Robert L Miller, Jr on 7/26/11. (jld) (cc: USCA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
LARRY ALDRIDGE,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent
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Cause No.: 3:11-CV-224 RM
(arising out of 3:05-CR-69(01)RM)
OPINION AND ORDER
The court recently denied Larry Aldridge’s petition for habeas relief under
28 U.S.C. § 2255. See Opinion and Order, June 16, 2011 [Doc. No. 52]. Mr.
Aldridge has now timely filed a notice of appeal, which the court construes as a
motion for a certificate of appealability and a motion to proceed on appeal in forma
pauperis.
To obtain a certificate of appealability Mr. Aldridge must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). This means he must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to proceed further.’” Miller-El
v. Cockrell, 537 U.S. at 336. For the reasons stated in the June 16, 2011 opinion
and order, Mr. Aldridge is far from meeting this burden: upon pleading guilty he
waived his right to pursue post-conviction relief and the judgment against him
became final more than five years ago. The issue Mr. Aldridge raises—the
constitutionality of mandatory minimum sentences for “first time, non-violent
offender[s]”—shouldn’t be encouraged to proceed further. Mr. Adlridge’s motion
for a certificate of appealability is DENIED.
An appeal can’t be taken in forma pauperis if it is not taken in good faith. 28
U.S.C. § 1915(a)(3). The appointment of CJA counsel during previous proceedings
doesn’t automatically entitle Mr. Aldridge to proceed in forma pauperis on appeal.
See FED. R. APP. PROC. 24(a)(3)(A). On the other hand, the denial of a certificate of
appealability doesn’t automatically require the denial of a motion to proceed in
forma pauperis. Walker v. O’Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). Rather,
the court must decide whether “a reasonable person could suppose that the
appeal has some merit.” Id. at 632. For the reasons stated in the June 16, 2011
opinion and order, an appeal wouldn’t be taken in good faith, and the motion to
proceed in forma pauperis is DENIED.
SO ORDERED.
ENTERED: July 26, 2011
/s/ Robert L. Miller, Jr.
Judge
United States District Court
cc:
Clerk, Seventh Circuit Court of Appeals
L. Aldridge
J. Maciejczyk-AUSA
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