Mitchell, Roy v. Hanrahan, William E.

Filing 29

Transmission of Notice of Appeal, Docketing Statement, Docket Sheet and Order to Seventh Circuit Court of Appeals re 27 Notice of Appeal, (Attachments: # 1 Docketing Statement, # 2 Declaration/Statement of Issues, # 3 Order, # 4 Docket Sheet) (elc),(ps)

Case: 3:16-cv-00556-wmc Document #: 26 Filed: 10/02/17 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROY MITCHELL,
ORDER
Petitioner,
v.

16-cv-556-wmc
Appeal No. 17-2996

WILLIAM E. HANRAHAN,
Respondent.

Petitioner Roy Mitchell, a transgender woman, filed this action for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging the validity of her sentence imposed upon
her in Dane County Case Number 2009CF001876. On September 21, 2017, this court
entered an order denying Mitchell’s petition as untimely and dismissing this matter. Judgment
was entered on that same day. Mitchell has now filed a notice of appeal to the court of appeals
from the September 21 order (dkt. #22) and requests leave to proceed without prepayment of
the appellate docketing fee (dkt. #23). A district court has the authority to deny such a motion
for one or more of the following reasons: the litigant wishing to take an appeal has not
established indigence; the appeal is not taken in good faith; or the litigant is a prisoner and has
three strikes. 28 U.S.C. § 1915(a)(1), (a)(3) and (g); see also Sperow v. Melvin, 153 F.3d 780,
781 (7th Cir. 1998).
Here, the court denied Mitchell’s petition as untimely. Before doing so, the court gave
her the opportunity to explain that it was timely, and she failed to make any showing that
would suggest that her claim was actually timely or that the doctrine of equitable estoppel
applied to toll the one-year statute of limitations. On this record, the court cannot certify
Mitchell’s appeal is taken in good faith.

Case: 3:16-cv-00556-wmc Document #: 26 Filed: 10/02/17 Page 2 of 3

Because the court is certifying Mitchell’s appeal as not taken in good faith, she cannot
proceed with her appeal without prepaying the $505 filing fee, unless the court of appeals gives
her permission to do so. Under Federal Rule of Appellate Procedure 24, Mitchell has 30 days
from the date of this order in which to ask the court of appeals to review the denial of leave to
proceed in forma pauperis on appeal. With such a motion, she would need to include an affidavit
as described in the first paragraph of Federal Rule of Appellate Procedure 24(a), with a
statement of issues she intends to argue on appeal. Also, she must submit a copy of this order.
Mitchell should be aware that she must file these documents in addition to the
notice of appeal she has filed previously. If she does not file a motion requesting review of
this order, the Court of Appeals may choose not to address the denial of leave to proceed in
forma pauperis at all. Instead, that court may require her to pay the entire $505 filing fee before
it considers her appeal. If her fees are not waived and she 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:
1. The court CERTIFIES that petitioner Roy Mitchell’s appeal is not taken in good
faith for purposes of Federal Rule of Appellate Procedure 24(a)(3).
2. Mitchell’s motion for leave to proceed in forma pauperis on appeal (dkt. #23) is
DENIED.

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Case: 3:16-cv-00556-wmc Document #: 26 Filed: 10/02/17 Page 3 of 3

3. Although this court has certified that Mitchell’s appeal is not taken in good faith
under Fed. R. App. P. 24(a)(3), Mitchell is advised that she may challenge
this finding pursuant to Federal Rule of Appellate Procedure 24(a)(5) by
filing a separate motion to proceed in forma pauperis on appeal with the
Clerk of Court, United States Court of Appeals for the Seventh Circuit,
within thirty (30) days of the date of this order. With that motion, she must
include an affidavit as described in the first paragraph of Fed. R. App. P. 24(a),
along with a statement of issues she intends to argue on appeal. Also, she must
submit a copy of this order. Mitchell should be aware that she must file these
documents in addition to the notice of appeal she has filed previously.

Entered this 2nd day of October, 2017.
BY THE COURT:

WILLIAM M. CONLEY
District Judge

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