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United States v. Lanier

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


June 14, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RANDY THOMAS LANIER, DEFENDANT.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of defendant Randy Thomas Lanier for leave to proceed on appeal in forma pauperis (Doc. 924). Lanier has appealed the Court's dismissal of his Rule 60(b)(6) motion seeking to vacate its prior ruling denying a motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The Court found that Lanier's motion was an unauthorized successive § 2255 petition over which this Court had no jurisdiction.

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).

Lanier's appeal is frivolous and not taken in good faith. Lanier's Rule 60(b)(6) motion is a successive § 2255 motion, and it is beyond question that this Court does not have jurisdiction to entertain a successive § 2255 motion absent certification from the Seventh Circuit Court of Appeals pursuant to § 2255, ¶ 8. Therefore, dismissal of his successive § 2255 motion for lack of jurisdiction was correct. See Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). Lanier cannot present any legal points that are reasonably arguable on their merits. Accordingly, the Court DENIES Lanier's motion for leave to proceed in forma pauperis (Doc. 924) and CERTIFIES that this appeal is not taken in good faith.

IT IS SO ORDERED.

20070614

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