Meling, Joseph v. Williams II, Louis

Filing 18

ORDER denying petitioner's 11 Motion for Reconsideration and granting petitioner's 15 Motion for Leave to Appeal in forma pauperis. Signed by District Judge James D. Peterson on 8/24/2017. (elc),(ps)

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

JOSEPH EARL MELING,
Petitioner,
v.

ORDER
17-cv-53-jdp
App. No. 17-2057

LOUIS WILLIAMS II,
Respondent.

Pro se petitioner Joseph Meling, a federal prisoner, seeks a writ of habeas corpus under
28 U.S.C. § 2241, challenging his sentence. Meling contends that the Supreme Court’s decision
in Jones v. United States, 526 U.S. 227 (1999), renders his sentence unlawful because a jury did
not find the facts that the sentencing judge used to enhance his sentence. I denied Meling’s
petition, explaining that Jones, like the other Apprendi line cases, does not apply retroactively.
Dkt. 3. Meling appealed, Dkt. 5, and the Seventh Circuit directed Meling to explain why this
court’s decision should not be summarily affirmed, Meling v. Williams, No. 17-2057, Dkt. 3
(7th Cir. June 2, 2017). Meling then filed a motion for reconsideration with this court. Dkt. 11.
I will deny Meling’s motion for reconsideration. A filing of a notice of appeal divests a
district court of jurisdiction over those aspects of the case involved in the appeal. May v.
Sheahan, 226 F.3d 876, 879 (7th Cir. 2000). Meling appealed my decision denying his petition,
so this court lacks jurisdiction to alter the earlier decision.
Meling also filed a motion to proceed in forma pauperis on appeal. Dkt. 15. Meling
submitted a certified copy of his trust fund account statement. After reviewing this information,
I conclude that Meling qualifies for indigent status from a financial standpoint.

I will not certify that Meling’s appeal is taken in bad faith or find that there is any other
reason to preclude plaintiff from proceeding in forma pauperis on appeal. Given the court of
appeal’s suggestion of summary affirmance, I of course do not believe that Meling has a
substantial chance of prevailing. But the standard for finding good faith is low: “a court need
only find that a reasonable person could suppose that the appeal has some merit.” Walker v.
O’Brien, 216 F.3d 626, 632 (7th Cir. 2000). Meling argues that courts’ failure to apply the
Apprendi line of cases retroactively leads to the “troubling possibility that a defendant has been
convicted of a conduct that constitutes a less serious offense than the one for which he is
sentenced.” Dkt. 11, at 8. This quote comes from the concurring opinion in Crayton v. United
States, 799 F.3d 623, 628 (7th Cir. 2015), which in turn quoted the concurring opinion in
Coleman v. United States, 329 F.3d 77, 93 (2d Cir. 2003). If two court of appeals opinions
suggest that Meling’s argument might have some merit (even though that is not the current
state of the law), a reasonable person could suppose that his appeal has some merit. Meling
may proceed in forma pauperis on appeal.

ORDER
IT IS ORDERED that:
1. Petitioner Joseph Meling’s motion for reconsideration, Dkt. 11, is DENIED.
2. Petitioner’s motion for leave to proceed in forma pauperis, Dkt. 15, is GRANTED.
Entered August 24, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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