Pineda-Buenaventura v. USA

Filing 15

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp granted. Request for certificate of appealability denied. Signed by District Judge Barbara B. Crabb on 4/12/2011. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
ORDER
Plaintiff,
08-cr-100-bbc
10-cv-793-bbc
v.
MAXIMO PINEDA-BUENAVENTURA,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendant Maximo Pineda-Buenaventura has filed a notice of appeal from the March
4, 2011 order denying his § 2255 motion and denying a certificate of appealability.
Defendant’s notice of appeal was not accompanied by the $455 fee for filing an
appeal. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22. Therefore, I construe it as including
a request for leave to proceed in forma pauperis on appeal pursuant to 28 U.S.C. § 1915.
According to 28 U.S.C. § 1915(a), a defendant who is found eligible for court-appointed
counsel in the district court proceedings may proceed on appeal in forma pauperis without
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.” Although
defendant had retained counsel to represent him during his criminal proceedings, he had

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court-appointed counsel on his direct appeal and I do not intend to certify that this 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 merit. Lee v. Clinton, 209 F.3d 1025,
1026 (7th Cir. 2000).
Defendant’s request for a certificate of appealability was previously denied in the
March 4, 2011 order. Therefore, he will have to make a request to the court of appeals to
issue such a certificate.

ORDER
IT IS ORDERED that defendant Maximo Pineda-Buenaventura’s request for leave
to proceed in forma pauperis on appeal is GRANTED. His request for a certificate of
appealability was previously denied in the March 4, 2011 order.
Entered this 12th day of April, 2011.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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