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Thomas v. United States

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


September 15, 2009

CHARLES BRUCE THOMAS, PETITIONER,
v.
UNITED STATES OF AMERICA, 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 Charles Bruce Thomas's motion for leave to proceed in forma pauperis (Doc. 56) in his appeal of the Court's dismissal of his Rule 60(b) motion, which the Court construed as a successive petition under 28 U.S.C. § 2255.

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, 631 (7th Cir. 2000).

Thomas's appeal is frivolous and not taken in good faith. 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, and that 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). Accordingly, the Court DENIES Thomas's motion (Doc. 56) and CERTIFIES that this appeal is not taken in good faith.

IT IS SO ORDERED.

20090915

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