Johnson v. Warden Chillicothe Correctional Institution

Filing 24

OPINION AND ORDER denying 23 Motion for Leave to Appeal in forma pauperis. Signed by Judge James L. Graham on 10/19/2016. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION VINCENT JOHNSON, CASE NO. 2:15-CV-00971 JUDGE JAMES L. GRAHAM Magistrate Judge Elizabeth A. Preston Deavers Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent. OPINION AND ORDER On September 26, 2016, the Court denied Petitioner’s request for a certificate of appealability. (ECF No. 22.) Petitioner has filed a Motion for Leave to Appeal in forma pauperis. (ECF No. 23.) 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. 2013 WL 1103774, at *3 (W.D. Tenn. 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). “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.” Frazier v. Hesson, 40 F.Supp.2d 957, 967 (W.D. Tenn. March 30, 1999)(citing Williams v. Kullman, 722 F.2d 1048, 1050 n. 1 (2d Cir. 1983)). “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 in good faith. Petitioner’s Motion for Leave to Appeal in forma pauperis, (ECF No. 23), therefore is DENIED. IT IS SO ORDERED. Date: October 19, 2016 ______s/ James L. Graham JAMES L. GRAHAM United States District Judge 2 __

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