United States District Court, N.D. Illinois, Eastern Division
August 17, 2005.
UNITED STATES OF AMERICA ex rel. HECTOR MERCADO, Petitioner,
ALAN UCHTMAN, Respondent.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
Hector Mercado ("Mercado") has filed a notice of appeal from
this Court's July 20, 2005 memorandum order ("Order") that
dismissed Mercado's self-prepared 28 U.S.C. § 2254*fn1
Petition for Writ of Habeas Corpus ("Petition"). This memorandum
order addresses Mercado's request for in forma pauperis treatment
in conjunction with his appeal.
Unlike the Petition, the filing fee for which was only
$5,*fn2 Mercado's appeal (like all appeals) requires the
payment of an aggregate $255 in filing fees. In that respect
Section 1915(b) provides that in forma pauperis status may be
granted to a prisoner litigant on condition that he or she pay
the entire filing fee, not up front but in installments as
prescribed by that subsection. But it remains true that the
granting of such status, even though appellant has made an appropriate showing of
poverty, is not proper if the appeal "is not taken in good faith"
(Section 1915(a)(3)). And Lee v. Clinton, 209 F.3d 1025, 1027
(7th Cir. 2000) teaches that the quoted language has the same
meaning as an appeal that is "non-frivolous."
In that regard, to be sure, the legal concept of a complaint's
frivolousness does not equate to the failure to state a claim
(the basis for dismissal of a civil complaint under Fed.R. Civ.
P. 12(b) (6)). But in this instance it appears that Mercado fails
to surmount the hurdle of legal non-frivolousness. As Order at
3-5 explained, none of the three grounds that he has sought to
advance for federal habeas relief is at all colorable, and that
is what occasioned the Order's swift dismissal of the Petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts.
Accordingly Mercado's motion for leave to file his appeal in
forma pauperis is denied as not satisfying the Section 1915(a)(3)
standard. This ruling renders moot his noncompliance with the
requirement of Section 1915(a) (2) to provide a printout of the
transactions in his trust fund account at Menard for the period
beginning February 1 and ended July 30, 2005.