Jackson-Bey v. Fisher

Filing 11

ORDER denying 10 Application on Proceed In Forma Pauperis on Appeal (Written Opinion). Signed by Judge Joan N. Ericksen on January 24, 2012. (slf)

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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Harold Steven Jackson-Bey, Petitioner, v. Civil Nos. 11-2670 and 11-2758 (JNE/JSM) ORDER Scott Fisher, Respondent. Petitioner filed two applications for habeas corpus relief under 28 U.S.C. § 2241 in this District. Both requests for relief under § 2241 were summarily dismissed for lack of jurisdiction; both challenged the validity rather than the execution of sentences imposed in the District of Maryland. In case number 11-CV-2670, Petitioner challenged the trial court’s April 2007 revocation of his supervised release and imposition of a new 24-month sentence for a violation of his supervised release which occurred in Maryland in 2006. In case number 11-CV-2758, Petitioner challenged a March 12, 2007 judgment entered against him in his 2006 District of Maryland felon-in-possession case. Petitioner appealed both orders dismissing his § 2241 claims to the United States Court of Appeals for the Eighth Circuit and has now filed motions in this Court to proceed in forma pauperis in both cases. The Court consolidates the cases for purposes of the pending motions and, for the following reasons, denies Petitioner’s request to proceed in forma pauperis. A prisoner-appellant may be granted leave to proceed in forma pauperis when he or she is unable to pay the required filing fee and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(1) and (3) (2006). Petitioner is currently incarcerated and his financial affidavit indicates that he earns $5.99 per month. Prison officials certify that Petitioner’s trust fund prison 1 account has had an average account balance of $79.20 for the past six months and presently contains $0.31. Petitioner appears unable to pay the filing fees. Good faith, for the purposes of 28 U.S.C. § 1915(a)(3), is judged by an objective standard. Coppedge v. U.S., 369 U.S. 438, 445 (1962). The good faith requirement is satisfied if an appellant seeks review of any non-frivolous issue. Id.; see also Perry v. Ralston, 635 F.2d 740, 742 (8th Cir. 1980) (applying the non-frivolous standard to civil appeals as well as criminal appeals). An appeal is frivolous where it has no arguable basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). “A petitioner may attack the execution of his sentence through § 2241 in the district where he is incarcerated; a challenge to the validity of the sentence itself must be brought under § 2255 in the district of the sentencing court.” Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002). Section 2241 is not the appropriate vehicle to challenge a conviction or sentence unless § 2255 is “inadequate or ineffective to test the legality” of detention. Lopez-Lopez v. Sanders, 590 F.3d 905, 907 (8th Cir. 2010) (rehearing en banc) (citing 28 U.S.C. § 2255). Both of Petitioner’s § 2241 claims challenge the validity of his sentences, not the conditions of his confinement. In case 11-CV-2670, Petitioner failed to bring a § 2255 action within the one-year statute of limitations. 28 U.S.C § 2255(f). Likewise, Petitioner could not bring a § 2255 claim in case 11-CV-2758, because he already brought a § 2255 claim which was denied, and he did not have prior approval from the Circuit Court of Appeals where he was convicted to bring a second § 2255 challenge. 28 U.S.C. § 2255(h). “[Section] 2255 is not inadequate or ineffective merely because the claim was previously raised in a § 2255 motion and denied, or because a remedy under that section is time-barred.” Abdullah v. Hedrick, 392 F.3d 957, 959 (8th Cir. 2004). There 2 is no arguable basis in law for Petitioner’s appeal challenging the dismissal of his § 2241 claims for lack of jurisdiction. Thus, Petitioner’s request for IFP status must be denied. Therefore, IT IS ORDERED THAT: 1. Petitioner’s application to proceed in forma pauperis under 28 U.S.C. § 1915 in case 11-CV-2670 [Docket No. 7] is DENIED. 2. Petitioner’s application to proceed in forma pauperis under 28 U.S.C. § 1915 in case 11-CV-2758 [Docket No. 10] is DENIED. Dated: January 24, 2012 s/ Joan N. Ericksen JOAN N. ERICKSEN United States District Judge 3

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