United States District Court, S.D. Illinois
November 3, 2005.
UNITED STATES OF AMERICA, Plaintiff,
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.
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