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Taylor v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


January 23, 2006

BRAD TAYLOR, #06468-028, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Murphy, Chief District Judge

MEMORANDUM AND ORDER

This matter is before the Court on a motion and affidavit in support of request to proceed in forma pauperis on appeal (Doc. 21). On October 18, 2005, this Court entered final judgment and dismissed the motion to vacate, set aside, or correct sentence. (See Docs. 12, 13.) The Court subsequently denied a certificate of appealability. (See Doc. 18.)

"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). A plaintiff is "acting in bad faith in the more common legal meaning of the term . [when he sues] . on the basis of a frivolous claim, which is to say a claim that no reasonable person could suppose to have any merit." Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). Further, "an appeal in a frivolous suit cannot be 'in good faith' under § 1915(a)(3), because 'good faith' must be viewed objectively." Moran v. Sondalle, 218 F.3d 647, 650 (7th Cir. 2000). See also Lee, 209 F.3d at 1026; Tolefree v. Cudahy, 49 F.3d 1243, 1244 (7th Cir. 1995) ("[T]he granting of leave to appeal in forma pauperis from the dismissal of a frivolous suit is presumptively erroneous and indeed self-contradictory.").

According to the documents submitted in support of the motion to proceed on appeal in forma pauperis, Petitioner is indigent. Moreover, the Court notes that Petitioner's motion was dismissed on the merits; it was not found to be frivolous. Although this Court has denied a certificate of appealability, the appeal is not in bad faith. Accordingly, the motion for leave to proceed in forma pauperis on appeal (Doc. 21) is GRANTED.

IT IS SO ORDERED.

G. PATRICK MURPHY Chief United States District Judge

20060123

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