SMITH, TIMOTHY SCOTT BAILEY v. STATE OF WISCONSIN

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)

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

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