Schuenke, Lloyd v. Smith, Judy

Filing 51

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Signed by District Judge James D. Peterson on 8/5/2016. (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. 16-2873

v.
JUDY P. SMITH,
Respondent.

In an August 26, 2014 order, I dismissed Lloyd Schuenke’s petition for writ of habeas
corpus under 28 U.S.C. § 2254 and denied him a certificate of appealability. Dkt. 18. The
Court of Appeals for the Seventh Circuit subsequently denied his motion for a certificate of
appealability. Dkt. 36. Petitioner then filed a motion for relief from judgment under Federal
Rule of Civil Procedure 60, which I denied on June 23, 2016. I also denied petitioner a
certificate of appealability. Now petitioner has filed a second notice of appeal in this case.
Because plaintiff has not paid the $505 fee for filing an appeal, I construe his notice as a
request for leave 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
Rule 60 motion because petitioners are foreclosed from attacking the court’s ruling on the
merits of a habeas petition in a Rule 60 motion. Gonzalez v. Crosby, 545 U.S. 524, 534 (2005)
(“[A] Rule 60(b) motion that seeks to revisit the federal court’s denial on the merits of a

claim for relief should be treated as a successive habeas petition.”). Having reviewed
petitioner’s motion and my order, I am convinced that no reasonable person could suppose
that his appeal has some merit.
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

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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 5th day of August, 2016.
BY THE COURT:
/s/
JAMES D. PETERSON
District Judge

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