Marshall v. Warden, Pickaway Correctional Institution

Filing 52

ORDER - re 49 Motion for Certificate of Appealability filed by Kenneth Marshall. Court denies Petitioner's request or leave to appeal in forma pauperis. Signed by Judge Gregory L. Frost on 10/1/15. (kn)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification) Mailed copy to: Kenneth Marshall, 695-185, PICKAWAY CORRECTIONAL INSTITUTION, P.O. Box 209, Orient, OH 43146

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KENNETH MARSHALL,
CASE NO. 2:14-CV-812
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, PICKAWAY
CORRECTIONAL INSTITUTION,
Respondent.

ORDER
On July 31, 2015, the Court denied Petitioner’s request for a certificate of appealability.
(ECF No. 42.) This matter is before the Court on Petitioner’s request to proceed in forma
pauperis on appeal. (ECF No. 49.)
Pursuant to 28 U.S.C. § 1915(a) (3), an appeal may not be taken in forma pauperis if the
appeal is not taken in good faith. Federal Rule of Appellate Procedure 24(a)(3)(A) provides:
A party who was permitted to proceed in forma pauperis in the
district-court action, or who was determined to be financially
unable to obtain an adequate defense in a criminal case, may
proceed on appeal in forma pauperis without further authorization,
unless:
(A) the district court—before or after the notice of
appeal is filed—certifies that the appeal is not
taken in good faith[.]
Id. “The good faith standard is an objective one.” Ervin v. Hammond, No. 13-2136-STA-dkv,
2013 WL 1103774, at *3 (W.D. Tenn. Mar. 15, 2013) (citing Coppedge v. United States, 369
U.S. 438, 445 (1962)). In order to meet the good faith standard, the appeal cannot be frivolous.
Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich. 1999) (citing Coppedge, at 445-46).
Additionally, as another judicial officer has recognized,
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“[t]the standard governing the issuance of a certificate of
appealability is more demanding than the standard for determining
whether an appeal is in good faith.” U.S. v. Cahill–Masching, 2002
WL 15701, * 3 (N.D.Ill. Jan.4, 2002). “[T]o determine that an
appeal is in good faith, a court need only find that a reasonable
person could suppose that the appeal has some merit.” Walker v.
O'Brien, 216 F.3d 626, 631 (7th Cir. 2000).

Penny v. Booker, No. 05–70147, 2006 WL 2008523, at *1 (E.D. Mich. July 17, 2006).
In light of the applicable standard, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that the appeal is not in good faith. This Court therefore DENIES Petitioner’s request for leave
to appeal in forma pauperis. (ECF No. 49.)
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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