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United States v. Bradley

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


February 1, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
PAUL R. BRADLEY, 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 Paul R. Bradley's motion for withdrawal of counsel James W. Lane, Jr. (Doc. 17), for appointment of new counsel (Doc. 18) and for leave to appeal in forma pauperis (Doc. 19). Bradley's case is currently on appeal before the Court of Appeals for the Seventh Circuit.

I. Withdrawal and Appointment of Counsel

Only the Court of Appeals may allow defense counsel to withdraw after judgment is entered or appoint new counsel for purposes of an appeal. United States v. Flowers, 789 F.2d 569, 570 (7th Cir. 1986) (per curiam); accord Corral v. United States, 498 F.3d 470, 474 (7th Cir. 2007); see Circuit Rule 51 ("Trial counsel in a criminal case, whether retained or appointed by the district court, is responsible for the continued representation of the client desiring to appeal unless specifically relieved by the court of appeals upon a motion to withdraw."). Similarly, only the Court of Appeals can appoint new counsel once a notice of appeal has been filed. Accordingly, the Court hereby DIRECTS the Clerk of Court to TRANSFER the pending motions (Docs. 17 & 18) to the Court of Appeals for the Seventh Circuit and terminate the motions before this Court.

II. In Forma Pauperis Status

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)(1) & (3); Fed. R. App. P. 24(a). 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 that Bradley is indigent and that his appeal is taken in good faith. Accordingly, the Court GRANTS the motion for leave to proceed on appeal in forma pauperis (Doc. 19).

IT IS SO ORDERED.

20100201

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