Smith v. Young et al
ORDER granting 4 Motion for Leave to Proceed in forma pauperis; denying  Motion for Certificate of Appealability; denying 7 Motion for Leave to Proceed in forma pauperis on Appeal. Signed by U.S. District Judge Karen E. Schreier on 3/28/2017. (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
BRUCE EDGAR SMITH,
DARIN YOUNG, BOB DOOLEY, MARTY
JACKLEY, THE ATTORNEY GENERAL
OF THE STATE OF SOUTH DAKOTA;
ORDER DENYING CERTIFICATE
OF APPEALABILITY AND DENYING
MOTION TO PROCEED IN FORMA
PAUPERIS ON APPEAL
Petitioner, Bruce Edgar Smith, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Docket 1. United States Magistrate Judge
Veronica L. Duffy recommended dismissal of the petition. Docket 5. Smith filed
a notice of interlocutory appeal, challenging Magistrate Judge Duffy’s
recommendation, and moves for leave to proceed in forma pauperis on appeal.
Docket 6; Docket 7.
Smith moves this court to issue to him a certificate of appealability. A
certificate of appealability may only be issued if the applicant has made a
substantial showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2). Smith is attempting to appeal from a report and recommendation
of a Magistrate Judge before the district court has either accepted or rejected
the report and recommendation.
The federal courts of appeals “may exercise jurisdiction only over final
orders, and certain interlocutory and collateral orders[.]” Washington v. Clarke,
435 F. App’x 265, 266 (4th Cir. 2011) (citing 28 U.S.C. § 1291 (2006); 28
U.S.C. § 1292 (2006); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 545–46 (1949). Magistrate Judge Duffy’s report and
recommendation is not a final order and is not an appealable interlocutory or
collateral order. Id. Therefore, Smith may not appeal from the order until the
district court has acted. Smith’s motion for a certificate of appealability is
Smith moves for leave to proceed in forma pauperis on appeal. Docket 7.
Under Federal Rules of Appellate Procedure 24, different rules apply to
petitioners seeking leave to proceed in forma pauperis on appeal who have
received prior approval to proceed in forma pauperis in the district court and
those who have not. Smith moved for leave to proceed in forma pauperis.
Docket 4. Magistrate Judge Duffy did not respond to this motion in her report
and recommendation. The court now grants this motion.
Smith has now received approval for leave to proceed in forma pauperis
in district court. Therefore, he “may proceed on appeal in forma pauperis
without further authorization, unless” the court “certifies that the appeal is not
taken in good faith . . . .” Fed. R. App. P. 24(a)(3). Here, Smith’s appeal is not
taken in good faith. He did not wait for the district court to rule on the report
and recommendation. Therefore, his appeal at this time is inappropriate.
Thus, it is ORDERED
1. Smith’s motion for leave to proceed in forma pauperis (Docket 4) is
2. Smith’s motion for a certificate of appealability (Docket 6) is denied.
3. Smith’s motion for leave to proceed in forma pauperis on appeal
(Docket 7) is denied.
Dated March 28, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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