Petty v. USA

Filing 10

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Request for certificate of appealability denied. Signed by District Judge Barbara B. Crabb on 12/9/2013. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
ORDER
Plaintiff,
10-cr-188-bbc
13-cv-734-bbc
v.
RICKY PETTY,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - On October 23, 2013, I denied defendant Ricky Petty’s motion for post conviction
relief under 28 U.S.C. § 2255 for his failure to show that he was sentenced in violation of
the law. In the same order, I denied the issuance of certificate of appealability under 28
U.S.C. § 2253(c) and Rule 11 of the Rules Governing Section 2255 Cases in the United
States District Courts. Judgment denying defendant’s motion was entered on November 15,
2013. Also on November 15, 2013, defendant filed a motion for reconsideration which was
also denied on November 15, 2013.
Now defendant has filed a notice of appeal. He has not paid the $505 fee that is
required if he is to take an appeal from the denial of a § 2255 motion. 28 U.S.C. §
2253(c)(1)(A); Fed. R. App. P. 22. Therefore, I will construe defendant’s notice as including

1

a request for leave to proceed in forma pauperis on appeal under 28 U.S.C. § 1915.
According to 28 U.S.C. § 1915(a), a defendant who is found eligible for courtappointed 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.” I do
not need to decide whether defendant is indigent because I am certifying that the appeal is
not taken in good faith. In this case a reasonable person could not suppose that the appeal
has some merit, as is required in order for the appeal to be taken in good faith.
The law is clear on the subject of federal jurisdiction over local crimes. It is not
debatable that the Court of Appeals for the Seventh Circuit has ruled that “it was within the
authority of the Congress under the Commerce Clause to create drug laws criminalizing
narcotics transactions such as those found under 21 U.S.C. §§ 846 and 841.” United States
v. Westbrook, 125 F.3d 996, 1009 (7th Cir.1997). The creation of those laws was a valid
exercise of congressional authority under the commerce clause because local narcotics
activities have a substantial effect on interstate commerce.

Id. Therefore, I will deny

defendant’s request to proceed in forma pauperis on appeal.

ORDER
IT IS ORDERED that defendant Ricky Petty’s request to proceed in forma pauperis

2

on appeal is DENIED.

Entered this 9th day of December, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

3