HIGH, JOHN v. USA

Filing 16

ORDER Construing Notice of Appeal as Request to Proceed IFP. Leave to proceed IFP granted. Signed by District Judge Barbara B. Crabb on 4/18/2012. (arw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
ORDER
Plaintiff,
07-cr-627-bbc
11-cv-627-bbc
v.
JOHN HIGH,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendant John High has filed a notice of appeal from the November 28, 2011 order
denying his post conviction motion under 28 U.S.C. § 2255 and the January 4, 2012 order
denying his Rule 59 motion. Although it appears that the appeal is untimely, it is not within
this court’s authority to determine the timeliness of an appeal; that decision is for the court
of appeals to make.
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

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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.” Defendant
had appointed counsel during the criminal proceedings against him and I do not intend to
certify that the 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).

ORDER
IT IS ORDERED that defendant John High’s request for leave to proceed in forma
pauperis on appeal is GRANTED.
Entered this 18th day of April, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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