Austin v. Sherry

Filing 13

ORDER Authorizing Petitioner to Proceed In Forma Pauperis on Appeal. Signed by District Judge David M. Lawson. (DTof)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION SHERMAN AUSTIN, Petitioner, Case No. 08-11364 Honorable David M. Lawson v. CAROL R. HOWES, Respondent. _______________________________________/ ORDER AUTHORIZING PETITIONER TO PROCEED IN FORMA PAUPERIS ON APPEAL On March 31, 2008, Sherman Austin filed a petition for writ of habeas corpus and paid the $5 filing fee. On September 1, 2011, the Court denied his petition. On September 30, 2011, the petitioner filed a notice of appeal. Although the petitioner paid the initial filing fee, the Court will authorize the plaintiff to proceed in forma pauperis on appeal from the Court’s entry of judgment on the petitioner-appellant’s petition for a writ of habeas corpus under 28 U.S.C. § 2254. The docket indicates that the petitioner paid the $5 filing fee when he filed his petition in this Court. See 28 U.S.C. § 1914. Therefore, the petitioner is not automatically authorized to appeal in forma pauperis under Federal Rule of Appellate Procedure 24(a)(3) and must show that he qualifies for such status. Because the “good faith” requirement of 28 U.S.C. § 1915(a)(3) does not apply to habeas petitions, Kincade v. Sparkman, 117 F.3d 949, 951-52 (6th Cir. 1997), this Court may authorize the prosecution of any appeal without the prepayment of fees by a prisoner who shows that he is unable to pay such fees. 28 U.S.C. § 1915(a)(1); Fed. R. App. P. 24(a)(1). The Court finds that the defendant qualifies for in forma pauperis status. Therefore, the petitioner’s request will be granted. Accordingly, it is ORDERED that the petitioner-appellant is AUTHORIZED to proceed in forma pauperis on appeal. s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: October 6, 2011 PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on October 6, 2011. s/Deborah R. Tofil DEBORAH R. TOFIL -2-

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