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Eldridge v. Wiley

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


November 17, 2008

CLINTON T. ELDRIDGE, PETITIONER,
v.
R. WILEY, RESPONDENT.

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

MEMORANDUM AND ORDER

This matter comes before the Court on petitioner Clinton T. Eldridge's Motion for Leave to Appeal in Forma Pauperis (Doc. 36). Eldridge filed a Notice of Appeal on October 8, 2008 as to this Court's Order adopting the Report and Recommendation of Magistrate Judge Donald G. Wilkerson and dismissing this case with prejudice, and the accompanying judgment (Doc. 34). Eldridge attached an affidavit setting forth his inability to pay the required fees and a certified copy of his prison trust account.

BACKGROUND

On appeal Eldridge contends that this Court erred in determining that he must first exhaust his administrative remedies before the Court may entertain his petition for sentence credit for time previously served.

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 law is clear that requests for sentence credit for time previously served must be made initially through the Bureau of Prisons's administrative channels, which are governed by federal regulation. See United States v. Wilson, 503 U.S. 329, 334 (1992); Romandine v. United States, 206 F.3d 731, 736 (7th Cir. 2000). Eldridge has conceded he has made no such administrative requests. Therefore, he has presented no legal points in this appeal that are reasonably arguable on their merits. Accordingly, the Court finds that this appeal is not taken in good faith.

CONCLUSION

For the foregoing reasons, the Court DENIES Eldridge's Motion for Leave to Appeal in Forma Pauperis (Doc. 36).

IT IS SO ORDERED.

20081117

© 1992-2008 VersusLaw Inc.



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