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United States v. Vann

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


September 26, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SHARICE C. VANN, DEFENDANT.

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

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant Sharice C. Vann's Motion for Leave to Proceed In Forma Pauperis (Doc. 302). For the following reasons, the Court DENIES Vann's Motion.

BACKGROUND

This Court entered Judgment against Sharice Vann (Vann) in the above styled criminal case on April 17, 2007. Forty days later, on June 22, 2007 Vann filed a Notice of Appeal. The United States Court of Appeals for the Seventh Circuit dismissed her appeal as untimely August 20, 2007. Vann has indicated that she will file a motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel. Vann filed the instant motion as part of her criminal case.

ANALYSIS

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).

The Court is satisfied from Vann's affidavit that she is indigent. However, the Court cannot grant Vann's motion at this time. First, the Court notes that there is no fee to file a § 2255 motion, so Vann has no need of pauper status for that purpose. Second, the Court will not authorize pauper status for free transcripts unless the defendant can demonstrate that her suit is not frivolous and that the transcript is needed to decide an issue presented by the suit. See 28 U.S.C. § 753(f). Since Vann has not yet filed a § 2255 motion, the Court cannot determine whether she can satisfy this standard. Third, should Vann seek pauper status in connection with a § 2255 motion, she must file her motion for leave to proceed in forma pauperis in that case, not in her criminal case. For these reasons, the Court DENIES the motion for leave to proceed in forma pauperis (Doc. 302) without prejudice to refiling another properly supported motion in a § 2255 proceeding

IT IS SO ORDERED.

20070926

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