Lopez v. GRAMS

Filing 43

Order that petitioner has until 1/11/10 to either pay the $455 appeal filing fee or submit a motion to proceed in forma pauperis on appeal. Signed by Chief Judge Barbara B. Crabb on 12/28/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

R O G E LIO LOPEZ, P e ti ti o n e r , v. G R E G O R Y GRAMS, Warden, Co lum bia Correctional Center, R espo nd ent. OR DER 0 8 -c v -4 0 8 -s lc

After the magistrate judge issued his report and recommendation but before this court en tered judgment, Rogelio Lopez filed a notice of appeal. In an order entered December 16, 2 0 0 9 , I construed the notice of appeal as raising objections to the report and recom m enda tion, rejected petitioner's arguments, adopted the recommendation that the p etitio n be dismissed and declined to issue petitioner a certificate of appealability. Judgment w a s entered December 17, 2009. Although petitioner has not filed a new notice of appeal from the December 16 order, under Fed. R. App. 4(a)(2), his premature notice of appeal is treated as if he filed it after the cou rt entered judgment. Petitioner has not paid the appellate filing fee or filed a request to p ro cee d in forma pauperis on appeal, accompanied by a copy of the six-month trust fund account statement from the institution. 28 U.S.C. § 1915(a)(2). (Petitioner paid the five

do llar filing fee in this court, so there is no affidavit of indigency to which this court could no w refer). Petitioner may have until January 11, 2010 either to pay $455 to the clerk of this co u r t as his appellate filing and docketing fee or to file his motion for leave to proceed in form a pauperis on appeal. If petitioner fails to exercise one of these options by this deadline, th en this court will deem his appeal abandoned. For petitioner's benefit, I note that I do not intend to certify that his appeal is taken in bad faith. E n tered this 28t h day of December, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

2