Kelly v. Rapelje

Filing 20

ORDER Granting 18 Application to Proceed In Forma Pauperis on Appeal. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROGER LEE KELLY,
Petitioner,

Civil Action No. 2:12-CV-10271
Hon. Arthur J. Tarnow

v.
LLOYD RAPELJE,
Respondent,
/
ORDER GRANTING THE MOTION TO PROCEED
IN FORMA PAUPERIS ON APPEAL
On April 22, 2013, this Court issued an opinion and order denying petitioner’s
application for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 and also
denied petitioner a certificate of appealability. Kelly v. Rapelje, No. 2:12-CV-10271;
2013 WL 1721634 (E.D. Mich. April 22, 2013). Petitioner has now filed a motion to
proceed in forma pauperis on appeal. For the reasons stated below, the motion to
proceed in forma pauperis on appeal is granted.
Although the Court has denied a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP) is a
lower standard than the standard for certificates of appealability. See Foster v. Ludwick,
208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v. Youngblood, 116 F.
3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of appealability may only be
granted if petitioner makes a substantial showing of the denial of a constitutional right ,
a court may grant IFP status if it finds that an appeal is being taken in good faith. Id. at

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Kelly v. Rapelje, 2:12-CV-10271
764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a). “Good faith” requires a showing
that the issues raised are not frivolous; it does not require a showing of probable
success on the merits. Foster, 208 F. Supp. 2d at 765. Although jurists of reason would
not debate the Court’s resolution of petitioner’s claims, the issues are not frivolous;
therefore, an appeal could be taken in good faith and petitioner may proceed in forma
pauperis on appeal. Id.
ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that the “Motion To Proceed
on Appeal In Forma Pauperis” [Dkt. # 18] is GRANTED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: July 9, 2013
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on July 9, 2013, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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