Schuenke, Lloyd v. Smith, Judy

Filing 30

ORDER denying petitioner's request for leave to proceed ifp on appeal (USCA case no. 14-3132, for 21 Notice of Appeal). Signed by District Judge James D. Peterson on 10/16/2014. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LLOYD T. SCHUENKE,
ORDER
Petitioner,
14-cv-276-jdp
App. No. 14-3132

v.
JUDY P. SMITH,
Respondent.

On August 26, 2014, I dismissed Lloyd T. Schuenke’s petition for a writ of habeas
corpus under 28 U.S.C. § 2254. I also denied petitioner a certificate of appealability. Now
petitioner has filed a notice of appeal and requests to proceed in forma pauperis on appeal.
The request will be denied because petitioner’s appeal is not taken in good faith. 28 U.S.C. §
1915(a)(3).
To find that an appeal is in good faith, a court need find only that a reasonable person
could suppose the appeal has some merit. Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir.
2000). However, I cannot certify that petitioner’s appeal is taken in good faith; I denied his
petition upon screening it under Rule 4 of the Rules Governing Section 2254 cases because
his petition plainly had no merit. Having reviewed the order, I am convinced that reasonable
jurists would not debate the conclusions I reached.
Because I am certifying petitioner’s appeal as not having been taken in good faith, he
cannot proceed with his appeal without prepaying the $505 filing fee unless the court of
appeals gives him permission to do so. Under Fed. R. App. P. 24, petitioner has 30 days from
the date of this order in which to ask the court of appeals to review this court’s denial of his

request for leave to proceed in forma pauperis on appeal. With his motion, he must include an
affidavit as described in the first paragraph of Fed. R. App. P. 24(a), with a statement of
issues he intends to argue on appeal. Also, he must send along a copy of this order. Petitioner
should be aware that he must file these documents in addition to the notice of appeal he has
filed previously.
If petitioner does not file a motion requesting review of this order, the court of
appeals might not address the denial of leave to proceed in forma pauperis on appeal. Instead,
it may require petitioner to pay the entire $505 filing fee before it considers his appeal. If
petitioner does not pay the fee within the deadline set, it is possible that the court of appeals
will dismiss the appeal.

ORDER
IT IS ORDERED that petitioner Lloyd T. Schuenke’s request leave to proceed in
forma pauperis on appeal is DENIED because I certify that his appeal is not taken in good
faith. If petitioner wishes to appeal this decision, he must follow the procedure set out in Fed.
R. App. P. 24(a)(5). The clerk of court is requested to ensure that petitioner’s obligation to
pay the $505 filing fee for the appeal is reflected in this court’s financial records.
Entered this 16th day of October, 2014.
BY THE COURT:

/s/
JAMES D. PETERSON
District Judge

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