Allen v. McBride

Filing 54

RULE 24 ORDER denying plaintiff's motion to proceed on appeal in forma pauperis. For reasons discussed in court's order overruling his objections, the court finds plaintiff's grounds to be frivolous. Signed by Judge David A. Faber on 3/20/2009. (cc: plaintiff, pro se and counsel of record) (mjp)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA AT BLUEFIELD STANFORD T. ALLEN, JR., Plaintiff, v. DAVID BALLARD, Warden, Defendant. RULE 24 ORDER Pursuant to Rule 24 of the Federal Rules of Appellate Procedure, plaintiff's motion to proceed on appeal in forma pauperis is DENIED. In his objections, plaintiff made three arguments: 1) that when the court reviews the record it will conclude that plaintiff was innocent of the crime; 2) that the court should order the recusal of Magistrate Judge VanDervort because he has a conflict of interest; and 3) that he was convicted under a counterfeit indictment. For the reasons discussed in the court's CIVIL ACTION NO. 1:06-0597

order overruling his objections, the court finds these grounds to be frivolous. faith. As to plaintiff's first objection, the court found that plaintiff is not entitled to habeas relief. To the extent that Therefore, plaintiff's appeal is not taken in good

plaintiff's "innocence" objection went to the sufficiency of the

evidence used to convict him, plaintiff withdrew that ground for habeas relief. Plaintiff also argued that Magistrate Judge VanDervort has a conflict of interest requiring recusal. in this case. Recusal is not warranted

Based on the evidence of record, no person with

knowledge of the relevant facts could "reasonably" question Magistrate Judge VanDervort's impartiality in this matter. Plaintiff's final objection goes to the indictment. indictment in this case appears to be in order. The Clerk is directed to send a copy of this Order to counsel of record and to plaintiff, pro se. IT IS SO ORDERED this 20th day of March, 2009. ENTER: The

David A. Faber Senior United States District Judge