FRAZIER, JAMES V. v. USA

Filing 7

ORDER: Petitioner James Frazier's request for leave to proceed in forma pauperis on appeal is DENIED because I certify that his appeal is not taken in good faith. Signed by District Judge Barbara B. Crabb on 10/15/14. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
ORDER
Plaintiff,
06-cr-221-bbc
14-cv-614-bbc
v.
JAMES FRAZIER,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - On September 10, 2014, defendant James Frazier filed a motion for post conviction
relief under 28 U.S.C. § 2255, alleging that his counsel was ineffective. The motion was
denied in an order entered the same day on the ground that it was a successive motion under
28 U.S.C. § 2255 and could not be filed unless defendant obtained permission for the filing
from a panel of the Court of Appeals for the Seventh Circuit. 28 U.S.C. § 2255(h). Because
this was the third motion that defendant had filed challenging his sentence, I told defendant
in that order that I would review any further filings in this case to be certain they were not
challenges to his conviction or sentence.
Now defendant has filed a notice of appeal from the September 10, 2014 order,
making still another futile attempt to challenge his 2007 sentence. 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

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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 must certify that petitioner's appeal is not
taken in good faith. 28 U.S.C. § 1915(a)(3). I denied his petition upon screening it because
it was a successive petition. 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. Instead, it may require petition to pay the entire $505 filing
fee before it considers his appeal. If petitioner fails to 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 James Frazier’s request leave to proceed in forma

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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 insure that petitioner's obligation to pay
the $505 filing fee for the appeal is reflected in this court's financial records.

Entered this 15th day of October, 2014.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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