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U.S. v. WHITE

United States District Court, S.D. Illinois


November 3, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
EARNEST LEWIS WHITE, Defendant.

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

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Earnest Lewis White's motion for leave to proceed before the Court of Appeals in forma pauperis (Doc. 35). He is appealing the Court's decision to dismiss for lack of jurisdiction a successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 because he has not received permission from the Court of Appeals to file a second — in White's case, a fifth — or successive § 2255 motion.

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, 632 (7th Cir. 2000).

  Because it is clear that the Court's dismissal of this case was correct, White's appeal could not present any legal points that are reasonably arguable on their merits. Accordingly, the Court finds that this appeal is frivolous and in bad faith and therefore DENIES the motion for leave to proceed on appeal in forma pauperis (Doc. 35).

  IT IS SO ORDERED.

20051103

© 1992-2005 VersusLaw Inc.



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