Wieczorek v. Harry

Filing 23

ORDER denying 21 Motion to Proceed IFP on Appeal. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JOHN WIECZOREK,
Petitioner,
v.

Case Number: 08-12334-BC
Honorable Thomas L. Ludington

SHIRLEE A. HARRY,
Respondent.
________________________________/
ORDER DENYING PETITIONER’S MOTION
FOR LEAVE TO APPEAL IN FORMA PAUPERIS
On August 15, 2011, the Court issued an opinion and order denying Petitioner’s application
for a writ of habeas corpus. ECF No. 18. Under Rule 11 of the Rules Governing § 2254
Proceedings, the Court “must issue or deny a certificate of appealability when it enters a final order.”
Accordingly, in the opinion and order dismissing the petition, the Court concluded that a certificate
of appealability was not warranted because reasonable jurists would not debate the Court’s
assessment of Petitioner’s claims nor conclude that the claims deserve encouragement to proceed
further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
On September 6, 2011, Petitioner filed a motion to proceed in forma pauperis on appeal,
requesting that the Court reconsider its decision declining to issue a certificate of appealability on
the claims presented in his petition or leave to appeal in forma pauperis.1 ECF No. 21. An appeal
may be taken in forma pauperis if the appeal is taken in “good faith.” 28 U.S.C. § 1915(a). “Good
faith” requires a showing that the issues are arguable on the merits and are, therefore, not frivolous;

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Under the Eastern District of Michigan’s Local Rules, motions for reconsideration must
be filed “within 14 days after entry of the judgment or order.” E.D. Mich. L.R. 7.1(h)(1).
Accordingly, Petitioner’s motion is untimely.

it does not require a showing of probable success. Harkins v. Roberts, 935 F. Supp. 871, 873 (S.D.
Miss. 1996) (quoting Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983)). “If the district court
can discern the existence of any nonfrivolous issue on appeal, the movant’s petition to appeal in
forma pauperis must be granted.” Harkins, 935 F. Supp. at 873. For the reasons stated in the Court’s
opinion and order of August 15, 2011, the Court does not discern a nonfrivolous issue in this case
and, thus, an appeal cannot be taken in good faith.
Accordingly, it is that Petitioner’s application to proceed in forma pauperis on appeal (ECF
No. 21) is DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: September 26, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and upon John
Wieczorek, #252051, at Newberry Correctional Facility. 3001
Newberry Avenue, Newberry, MI 49868 first class U.S. mail on
September 26, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS

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