Herring, Derrick v. Williams

Filing 14

ORDER Construing Notice of Appeal as Request to Proceed ifp. Leave to proceed ifp denied. Signed by District Judge James D. Peterson on 10/3/2016. (jef)

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

DERRICK HERRING,
Petitioner,

ORDER

v.
16-cv-364-jdp
Appeal No. 16-3533

WILLIAMS,
Respondent.

On August 9, 2016, I denied pro se petitioner Derrick Herring’s petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Dkt. 3. Herring filed a notice of appeal, which
he then voluntarily withdrew. Dkt. 6 and Dkt. 9. He also filed a motion to alter or amend
judgment, Dkt. 5, which I denied on September 9, 2016, Dkt. 10. Now Herring has filed a
second notice of appeal in this case. Dkt. 11. Because Herring 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. I will deny the request because Herring’s appeal is not taken in good faith. 28 U.S.C.
§ 1915(a)(3).
To find that an appeal is taken 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 Herring’s appeal is taken in good faith. I
dismissed his petition because Herring raises no claims that could entitle him relief under
§ 2241. Having reviewed Herring’s motion and my orders, I am convinced that no reasonable
person could suppose that his appeal has some merit.
Because I am certifying Herring’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, Herring 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. Herring
should be aware that he must file these documents in addition to the notice of appeal that he
has filed previously.
If Herring 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 Herring to pay the entire $505 filing fee before it considers his appeal. If Herring
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 Derrick Herring’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. If Herring 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 Herring’s obligation
to pay the $505 filing fee for the appeal is reflected in this court’s financial records.
Entered October 3, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

2