Poole v. Parker

Filing 19

MEMORANDUM & ORDER denying 16 Motion for Leave to Appeal in forma pauperis; petitioner must pay the $455 filing fee with this court or file a motion to proceed IFP with the Sixth Circuit within 30 days. Signed by Senior Judge Thomas B. Russell on 1/27/2012. cc:counsel (KJA) Modified on 1/27/2012 to edit docket text(KJA).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT PADUCAH
RAYFORD E. POOLE
v.

PETITIONER/APPELLANT
CIVIL ACTION NO. 5:11CV-P81-R

PHILLIP PARKER

RESPONDENT/APPELLEE

MEMORANDUM AND ORDER
Petitioner/Appellant Rayford E. Poole has filed a motion to proceed on appeal in forma
pauperis (DN 16). The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28
U.S.C. § 1915, does not apply to appeals of orders denying 28 U.S.C. § 2254 petitions. Kincade
v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2254
case, and thereby avoid the appellate filing fee, an appellant must seek permission from the
district court under Federal Rule of Appellate Procedure 24(a). Id. at 952. Rule 24(a) provides
that a party seeking pauper status on appeal must first file a motion in the district court, along
with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also provides that if
the district court certifies that an appeal would not be taken in good faith, or otherwise denies
leave to appeal in forma pauperis, the appellant must file his motion to proceed in forma
pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5).
By Memorandum Opinion entered September 2, 2011, the Court concluded that the
petition was time-barred and determined that a certificate of appealability was not warranted
(DN 13). Those same reasons cause this Court to certify that the appeal is not taken in good
faith.

IT IS THEREFORE ORDERED that the motion to proceed on appeal in forma
pauperis (DN 16) is DENIED.
Consequently, Petitioner/Appellant must pay the full $455 appellate filing fee or file
a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court
of Appeals within thirty (30) days after service of notice of this Order.
Should Petitioner/Appellant choose to pay the fee, payment must be made payable to the
Clerk, U.S. District Court and sent to Office of the Clerk, United States District Court, Western
District of Kentucky, 601 West Broadway, Louisville, Kentucky 40202-2249. Failure to
comply with this Order may result in dismissal of the appeal.
Date:

January 27, 2012

cc:

Petitioner/Appellant, pro se
Clerk, Sixth Circuit Court of Appeals (No. 11-6200)
4413.005

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