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KNOX v. U.S.

United States District Court, S.D. Illinois


August 8, 2005.

LARRY D. KNOX, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: J. GILBERT, District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on petitioner Larry D. Knox's ("Knox") motions for a certificate of appealability (Doc. 35) and for leave to proceed on appeal in forma pauperis (Doc. 37).

I. Motion for Certificate of Appealability (Doc. 35)

  A § 2255 petitioner may not proceed on appeal without a certificate of appealability. 28 U.S.C. § 2253(c)(1); see Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 124 S. Ct. 2562, 2569 (2004) ; Ouska, 246 F.3d at 1045. To make such a showing, the petitioner must "demonstrate that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have been resolved in a different manner or that the issue presented was adequate to deserve encouragement to proceed further." Ouska, 246 F.3d at 1046; accord Tennard, 124 S. Ct. at 2569; Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability should issue if the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.") The Court finds that Knox has not made such a showing and, accordingly, DENIES the motion for a certificate of appealability. II. Motion for Leave to Proceed In Forma Pauperis (Doc. 37)

  A federal court may permit a party to proceed on appeal without full pre-payment of fees provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(3); Fed.R.App.P. 24(a)(3). A frivolous appeal cannot be made in good faith. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). The test for determining if an appeal is in good faith or not frivolous is whether any of the legal points are reasonably arguable on their merits. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 386 U.S. 738 (1967)); Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000).

  The Court is satisfied from Knox's affidavit that he is indigent. Furthermore, the Court does not believe that this action is frivolous or malicious. Therefore, the Court GRANTS the motion to proceed on appeal in forma pauperis without prepayment of fees and costs (Doc. 37).

  IT IS SO ORDERED.

20050808

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