HAYES v. USA

Filing 14

Order Construing 9 NOTICE OF APPEAL as Request to Proceed IFP on Appeal. Leave to proceed IFP granted. Signed by Chief Judge Barbara B. Crabb on 9/18/2009. (arw)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------U N IT E D STATES OF AMERICA, ORDER Plaintiff, 09-cv-208-bbc v. M A U R IC E LARON HAYES, D efendan t. --------------------------------------------O n June 26, 2009, I denied defendant Maurice Laron Hayes's motion for post con viction relief brought pursuant to 28 U.S.C. § 2255. On July 6, 2009, defendant filed a request for a certificate of appealability, which I denied on July 13, 2009. On July 28, 2 0 0 9, defendant filed another request for certificate of appealability with the court of appeals. The court of appeals has forwarded the document to this court, with a request that i t be construed as a notice of appeal of the June 26, 2009 denial of defendant's § 2255 m otion. Because defendant has not paid the $455 filing fee, it is necessary to decide w hether he is entitled to proceed on appeal in forma pauperis. According to 28 U.S.C. § 1915(a), a defendant who is found eligible for courtapp oin ted counsel in the district court proceedings may proceed on appeal in forma pauperis 1

w i th ou t further authorization "unless the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed." D efendant had court-appointed counsel during the criminal proceedings against him and I do not intend to certify that his appeal is not taken in good faith. Defendant's challenge to his sentence is not wholly frivolous. A reasonable person could suppose that it has some m erit. Cf., Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). Therefore, I will grant him leave to proceed on appeal in forma pauperis.

ORDER IT IS ORDERED that defendant Maurice Laron Hayes's request for a certificate of app ealability filed with the court of appeals is construed as notice of appeal and motion to p ro ceed in forma pauperis on appeal. Defendant's motion to proceed in forma pauperis on app eal is GRANTED. Entered this 18th day of September, 2009. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

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