Whitt v. Warden Lebanon Correctional Institution

Filing 33

OPINION AND ORDER denying 31 Motion ; denying 32 Motion for Leave to Appeal in forma pauperis. Signed by Judge James L. Graham on 5/27/2016. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHEN H. WHITT,
CASE NO. 2:15-CV-00560
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth P. Deavers

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

OPINION AND ORDER
On April 15, 2016, the Court denied Petitioner’s Motion for Certificate of Appealability.
(ECF No. 29.) Petitioner has filed a Motion for Leave to appeal in forma pauperis and Request
for a Three Judge Panel. (ECF Nos. 31, 32.) For the reasons that follow, Petitioner’s Motion for
Leave to appeal in forma pauperis and Request for a Three Judge Panel, (ECF Nos. 31, 32), are
DENIED.
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. In addressing this standard, another court has explained:
The good faith standard is an objective one. Coppedge v. United
States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). An
appeal is not taken in good faith if the issue presented is frivolous.

Id. Accordingly, it would be inconsistent for a district court to
determine that a complaint is too frivolous to be served, yet has
sufficient merit to support an appeal in forma pauperis. See
Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir.1983).
Frazier v. Hesson, 40 F. Supp. 2d 957, 967 (W.D. Tenn.1999). Further,
“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).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal is not taken in good
faith.
Petitioner has also filed a Request for a Three Judge Panel pursuant to 28 U.S.C. §
2284(a), which provides that “[a] district court of three judges shall be convened when otherwise
required by Act of Congress, or when an action is filed challenging the constitutionality of the
apportionment of congressional districts or the apportionment of any statewide legislative body.”
Petitioner does not challenge the apportionment of congressional districts or a statewide
legislative body, nor does he identify any Act of Congress requiring a three-judge panel in this
case. Moreover, this Court is without jurisdiction to consider Petitioner’s motion pursuant to the
filing of his appeal. See Freeman v. Pineda, No. 2:10-CV-00035, 2011 WL 1188410, at *1 (S.D.
Ohio March 28, 2011) (“The filing of a notice of appeal divests this Court of jurisdiction except
to act in aid of the appeal.”) (citing Adkins v. Jeffries, 327 F. App’x 537, unpublished, 2009 WL
1083850, at *2 (6th Cir. April 27, 2009)).

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Therefore, Petitioner’s Motion for Leave to appeal in forma pauperis and Request for a
Three Judge Panel, (ECF Nos. 31, 32), are DENIED.

IT IS SO ORDERED.
Date: April 27, 2016
______s/James L. Graham_______
JAMES L. GRAHAM
United States District Judge

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