Williams v. Smith

Filing 30

ORDER signed by Judge J.P. Stadtmueller on 9/26/2017 DENYING 24 Petitioner's Request for Leave to Proceed Without Prepayment of Filing Fee on Appeal (request included within Petitioner's Notice of Appeal). (cc: all counsel, via mail to Wayne E. Williams at Oshkosh Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
WAYNE E. WILLIAMS,
Petitioner,
v.
JUDY P. SMITH,
Respondent.

Case No. 17-CV-411-JPS
7th Circuit Case No. 17-2957

ORDER

On August 30, 2017, the Court dismissed Petitioner’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket #22). The Court
determined that the petition is untimely, based both on the record before it
and Petitioner’s failure to meaningfully dispute Respondent’s statute of
limitations argument. The Court therefore entered judgment in favor of
Respondent. (Docket #23). Petitioner filed a notice of appeal on September
21, 2017. (Docket #24). Buried within the notice of appeal is a request for
leave to proceed in forma pauperis on appeal. Id. at 2–3. For the reasons stated
below, the Court will deny that request.
Petitioner, a prisoner proceeding pro se, may not proceed without
prepayment of the filing fee on appeal if the Court certifies in writing that
the appeal is not taken in “good faith.” 28 U.S.C. § 1915(a)(3). To determine
whether a prisoner takes an appeal in “good faith,” the Court must
determine whether “a reasonable person could suppose that the appeal has
some merit.” Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000); Lee v.
Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). An appeal is taken in “good

faith” when it seeks review of an issue that is not clearly frivolous. Lee, 209
F.3d at 1026.
The fact that the Court has already denied Petitioner a certificate of
appealability, see (Docket #22 at 4–5), is not fatal to a request to proceed in
forma pauperis on appeal, since 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 for purposes of proceeding
in forma pauperis on appeal. See Walker, 216 F.3d at 631–32. Thus, an
unsuccessful movant for relief under Section 2254 may proceed in forma
pauperis on appeal even after a district court has denied issuance of a
certificate of appealability. See id.
While it is possible for a habeas petitioner to warrant in forma pauperis
status on appeal despite being denied a certificate of appealability, this is
not such a case. Nowhere in his notice of appeal or other submissions does
Petitioner identify any alleged error this Court committed. Moreover, the
Court’s order dismissing the petition reveals that well-settled principles of
law—both substantively, as to the habeas corpus statute of limitations, and
procedurally, as to Petitioner’s responsibility to oppose Respondent’s
motion to dismiss—establish that the petition is untimely. As a result, the
Court has no basis on which to conclude that Petitioner’s appeal is nonfrivolous, and the Court therefore finds that his appeal is not taken in good
faith.
Finally, because the Court certifies that the appeal is not taken in
good faith, the Court provides the following information to Petitioner
regarding proceeding before the Seventh Circuit. Petitioner will not be able
to proceed on appeal without prepayment of the filing fee unless the Court
of Appeals gives him permission to do so. Petitioner has thirty (30) days
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from the date of this Order to request that the Seventh Circuit review the
Court’s denial of his request for leave to appeal without prepayment of the
filing fee on appeal. Fed. R. App. P. 24. If Petitioner requests review by the
Seventh Circuit, he must include an affidavit and statement of issues he
intends to present on appeal, pursuant to Fed. R. App. P. 24(a). He must
also provide a copy of this Order, in addition to the notice of appeal he
previously filed. If Petitioner does not request review of this order, the
Seventh Circuit may choose not to address the Court’s denial of Petitioner’s
motion; instead, it may require Petitioner to pay the full filing fee before it
considers his case. Failure to pay a required fee may result in dismissal of
the appeal.
Accordingly,
IT IS ORDERED that Petitioner’s request for leave to proceed on
appeal in forma pauperis (Docket #24) be and the same is hereby DENIED.
Dated at Milwaukee, Wisconsin, this 26th day of September, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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