Adams #258364 v. Palmer

Filing 19

ORDER DENYING IFP: petitioner to pay the entire appeal fee of $455.00 within 28 days or the appeal may be dismissed by the Sixth Circuit Court of Appeals; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, acr)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BARRY WAYNE ADAMS,
Petitioner,
v.

Case No. 1:11-cv-1123
Honorable Paul L. Maloney

CARMEN PALMER,
Respondent.
____________________________________/
ORDER REGARDING LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254, challenging his conviction and sentence for failure to pay child support, Mich. Comp. Laws
§ 760.165. On December 14, 2011, the Court entered an order and judgment dismissing the petition
and denying a certificate of appealability (docket ##8, 9). The order and judgment of dismissal
followed the Court’s de novo review of Petitioner’s objections to the report and recommendation of
the magistrate judge. Petitioner now has filed a notice of appeal (docket #13) and a motion for leave
to proceed in forma pauperis on appeal (docket #16).
Federal Rule of Appellate Procedure 3(e) provides that the appellant must pay all
required fees at the time a notice of appeal is filed with the district court. Under Sixth Circuit
Internal Operating Procedure 103(1), the docketing fee for a case on appeal is $450.00. In addition,
under 28 U.S.C. § 1917, a $5.00 filing fee must be paid to the district court. Petitioner has not paid
the required fees.

Petitioner was permitted to proceed before this Court in forma pauperis. Pursuant
to Rule 24(a) of the Federal Rules of Appellate Procedure, he may continue that status on appeal
unless this court certifies that his appeal is not taken in good faith. Good faith is judged objectively,
and an appeal is taken in good faith when it seeks review of an issue which is not frivolous.
Coppedge v. United States, 369 U.S. 438, 445 (1961).
Detailed reasons for dismissal of the petition as time-barred were provided in the
report and recommendation (docket #6) that was adopted by this Court. The Court reaffirms its
decision and finds that an appeal from the dismissal of this action would be frivolous. The Court,
therefore, certifies that the appeal is not taken in good faith. If Petitioner wishes to proceed with his
appeal, he must pay the $455.00 appellate fee to the Clerk of this Court within 28 days of this order.
Alternatively, Petitioner may file a motion for leave to proceed in forma pauperis in the Court of
Appeals pursuant to the requirement set forth in FED. R. APP. P. 24(a)(5). Accordingly:
IT IS ORDERED that Petitioner is DENIED leave to proceed in forma pauperis on
appeal. The Court certifies that the appeal is not taken in good faith. If Petitioner wishes to proceed
with his appeal, he must pay the $455.00 appellate fee to the Clerk of this Court within 28 days of
this order. Alternatively, Petitioner may file a motion for leave to proceed in forma pauperis in the
Court of Appeals pursuant to the requirement set forth in FED. R. APP. P. 24(a)(5).

Dated: March 27, 2012

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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