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Patterson v. Zuercher

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION


August 19, 2008

ANDREW PATTERSON PLAINTIFF,
v.
WARDEN ZUERCHER DEFENDANT.

The opinion of the court was delivered by: Joe Billy McDade United States District Judge

OPINION AND ORDER

Before the Court is Petitioner's Motion for Leave to Appeal in forma pauperis (Doc. 5.) the denial of his habeas petition filed in this Court under 28 U.S.C. § 2241. Previously, Petitioner had filed a habeas petition under § 2255 in the Northern District of Illinois challenging his sentence in 1998 for drug related convictions in that court. That habeas petition was dismissed on statute of limitations grounds. In the underlying case at bar, Petitioner again sought to challenge his 1998 federal sentence, only this time he brought his Petition under the guise of § 2241. This Court ruled that Petitioner was trying to circumvent the statute of limitations by using this stratagem. Accordingly, this Court denied Petitioner's request for relief. (Doc. 3.) Now, Petitioner would like this Court to provide a certificate of appealability so that he may proceed in forma pauperis on appeal.

Under 28 U.S.C. § 1915(a) (3), a court is required to determine if Petitioner's appeal is taken in good faith. See Newlin v. Helman, 123 F.3d 429, 433-34 (7th Cir. 1997); Sperow v. Melvin, 153 F.3d 780, 781 (7th Cir. 1998). To determine that an appeal is taken in good faith, "a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000).

Regardless of the fact that this underlying habeas Petition is strategically filed under § 2241, this Court has construed it as Petitioner's motion pursuant to § 2255 to challenge his underlying federal sentence; and Petitioner did not receive leave to file a second or subsequent request for § 2255 relief from the Court of Appeals. Accordingly, there is no basis to conclude that his appeal could have merit and Petitioner's appeal is not taken in good faith.

IT IS THEREFORE ORDERED that Petitioner's Motion for Leave to Appeal in forma pauperis is DENIED.

ENTERED this 19th day of August, 2008.

20080819

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