Anderson v. Winn

Filing 37

ORDER Denying 32 Application to Proceed In Forma Pauperis filed by Steven B. Anderson. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVEN B. ANDERSON,

2:18-CV-11133-TGB-APP

Petitioner,
v.
THOMAS WINN,
Respondent.

ORDER DENYING
APPLICATION TO PROCEED
IN FORMA PAUPERIS
(ECF NO. 32)

Pending before the Court is Steven Anderson’s application to
proceed on appeal without prepayment of filing fees. ECF Nos. 32.
The Court denied relief in this habeas case over four years ago, in
April 2019. ECF No. 13. Anderson tried to appeal, but the Sixth Circuit
denied a certificate of appealability. ECF No. 20. In July 2022, he moved
for recusal and relief from judgment. ECF Nos. 24 & 25. The Court
entered an order denying both motions on January 30, 2023. ECF No. 28.
On May 8, 2023, Anderson filed an untimely notice of appeal from
the January 20, 2023 order, asserting he had not received it. ECF No. 30.
The Sixth Circuit asked this Court to consider whether he was entitled
to an extension of time to file his notice of appeal. ECF No. 34. The Court
granted the extension. ECF No. 35.
The Court must now also determine whether Anderson is entitled
to proceed without prepaying filing fees. ECF No. 36. A court may allow
a prisoner to proceed without prepaying filing fees if the prisoner is

unable to pay the fee and the appeal is being taken in good faith. 28
U.S.C. § 1915(a); FED. R. APP. 24(a). An appeal is not taken in good faith
if it raises frivolous issues. Foster v. Ludwick, 208 F. Supp. 2d 750, 765
(E.D. Mich. 2002).
This appeal concerns the Court’s previous order denying a motion
for post-judgment relief. As explained in that order, Anderson had argued
incorrectly that—because one of his habeas claims involved an allegation
that a state prosecutor committed fraud upon the court—he was entitled
to different standard of review under Federal Rules of Civil Procedure
60(b)(3) and 60(d)(3) than the “cause and prejudice” test that is generally
applied to defaulted claims. ECF No. 28, PageID.3804-05.
This

argument

is

frivolous

because

it

stems

from

a

misunderstanding of Rules 60(b)(3) and 60(d)(3). The Rules do indeed
concern fraud, but they refer to misrepresentations made by an opposing
party during federal trial proceedings–not fraud forming the basis of a
habeas claim alleged to have occurred in state court. Rules 60(b)(3) and
60(d)(3) simply do not pertain to the standard of review used by the Court
in its original adjudication of Anderson’s claims.
Accordingly, because an appeal of the order denying Anderson’s
motion for relief from judgment is frivolous, his application to proceed
without prepaying filing fees is DENIED.

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IT IS SO ORDERED, this 5th day of December, 2023.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge

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