GIBBS-EL v. SUPERINTENDENT, MIAMI CORRECTIONAL FACILITY

Filing 30

Entry Denying Requests to Proceed on Appeal In Forma Pauperis 23 , for the Appointment of Counsel 17 , and for a Certificate of Appealability 24 . Signed by Judge Tanya Walton Pratt on 1/15/2013. c/m (cc: USCA re: CA #13-1092.) (TMA)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
KENNETH WILLIS GIBBS-EL,

)
)
Petitioner,
)
vs.
)
)
SUPERINTENDENT, Miami Correctional Facility, )
)
Respondent.
)

1:12-cv-1255-TWP-DKL
CA #13-1092

Entry Denying Requests to Proceed on Appeal In Forma Pauperis, for the
Appointment of Counsel, and for a Certificate of Appealability
I.
In this action Kenneth Willis Gibbs-El sought a writ of habeas corpus. It was
filed on September 5, 2012, and was dismissed without prejudice on December 12,
2012.
Early on in the case, Gibbs-El filed, and the court denied, his motion for the
appointment of counsel. He then filed a renewed request for the appointment of
counsel in his motion filed on November 21, 2012. The court ruled on the habeas
petition without specifically addressing the renewed request for the appointment of
counsel.
As was noted previously, a habeas petitioner has no constitutional
entitlement to the appointment of counsel, but that step is authorized by statute, 18
U.S.C. § 3006A(a)(2)(B), “[w]henever . . . the court determines that the interests of
justice so require.” The court also concluded in that same Entry of October 2, 2012,

that it was not in the interests of justice that counsel be appointed for Gibbs-El,
noting that his “claims are not particularly complex, that there is no likelihood that
an evidentiary hearing will be necessary, that no discovery or other investigation
will be required, that due allowance to the petitioner’s pro se status will be made
and that the petitioner has at least thus far demonstrated adequate ability to
express and present his claims.” Those same factors warranted the same ruling as
to the renewed request for the appointment of counsel. That ruling is now made
explicit and the motion [Dkt. 17] is denied.
II.
‘The petitioner seeks leave to proceed on appeal without prepayment of the
appellate fees of $455.00. An appeal may not be taken in forma pauperis if the trial
court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915; see
Coppedge v. United States, 369 U.S. 438 (1962). "Good faith" within the meaning of
§ 1915 must be judged by an objective, not a subjective, standard. See id. There is
no objectively reasonable argument the petitioner could present to argue that the
disposition of this action was erroneous. In pursuing an appeal, therefore, the
petitioner “is acting in bad faith . . . [because] to sue in bad faith means merely to
sue on the basis of a frivolous claim, which is to say a claim that no reasonable
person could suppose to have any merit.” Lee v. Clinton, 209 F.3d 1025, 1026 (7th
Cir. 2000). Accordingly, his appeal is not taken in good faith, and for this reason his
request for leave to proceed on appeal in forma pauperis [Dkt. 23] is denied.

III.
The petitioner’s renewed request for a certificate of appealability [Dkt. 24] is
denied for the same reason that was given in the final paragraph of the Entry of
December 12, 2012.
IT IS SO ORDERED.

01/15/2013
Date: __________________
Distribution:
Kenneth W. Gibbs-El
DOC #30344
Miami Correctional Facility
3038 West 850 South
P.O. Box 900
Bunker Hill, IN 46914
Electronically Registered Counsel

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana