Filing 29

ORDER denying petitioner's implied request for leave to proceed in forma pauperis. Appeal not certified to be taken in good faith. Petitioner's implied request for a certificate of appealability is denied. Signed by Chief Judge Barbara B. Crabb on 11/24/09. (elc),(ps)

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IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN T IM O T H Y SCOTT BAILEY SMITH, P e ti ti o n e r , v. S TA T E OF WISCONSIN, R espo nd ent. OR DER 0 5 - cv -6 5 3 - b b c T im othy Smith has filed a notice of appeal from this court's order entered November 17, 2009, in which I denied a set of motions filed by petitioner titled "Motion to Renew an Application for a Preliminary Injunction/Temporary Restraining Order," "Motion for Stay of State Proceedings" and "Motion for Findings of Fact" under Fed. R. Civ. P. 52(a)(5). These motions related to this court's dismissal of a petition for a writ of habeas corpus that petition er filed in November 2005. I denied the motions on the ground that they amounted either to an untimely attempt to resurrect the petition or to an unauthorized successive attack on petitioner's conviction. W hen a petitioner files a motion that is actually a mislabeled successive habeas petition , the petitioner needs a certificate of appealability under 28 U.S.C. 2253(c) in ord er to appeal. Sveum v. Smith, 403 F.3d 447, 448 (7th Cir. 2005) (per curiam). H ow ever, an unauthorized successive collateral attack does not satisfy the criteria for a certificate of appealability. Id. Accordingly, petitioner's implied request for a certificate of appealability will be denied. Petition er asserts that he will be filing an affidavit in support of a request to proceed in forma pauperis on appeal. Petitioner need not take this step because I am certifying that his appeal is not taken in good faith. 28 U.S.C. 1915(a)(3). No reasonable person could su p p o s e there is any merit to petitioner's appealing the denial of his untimely and un autho rized motions. Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). ORDER IT IS ORDERED that petitioner Timothy Smith's implied request for leave to pro ceed in forma pauperis on appeal is DENIED because I am certifying that his appeal is no t taken in good faith. Further, IT IS ORDERED that petitioner's implied request for a certificate of appealability is DENIED. Under Fed. R. App. P. 22(b), if a district judge denies an app lication for a certificate of appealability, the petitioner may request a circuit judge to issue the certificate. E n tered this 24t h day of November, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge 2

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