UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS
May 14, 2010
ROBERT R. BANKS, PETITIONER,
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 Robert R. Banks' pro se Notice of Appeal (Doc. 32) and Motion for Leave to Proceed in Forma Pauperis (Doc. 36). Pursuant to Federal Rule of Appellate Procedure 22(b)(1), the Court construes Banks' notice of appeal as a request for a certificate of appealability. See Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). A § 2255 petitioner, such as Banks, may not proceed on appeal without a certificate of appealability. 28 U.S.C. § 2253(c)(1); see Ouska, 246 F.3d at 1045.
I. Certificate of Appealability
A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska, 246 F.3d at 1045. To make such a showing, the petitioner must "demonstrate that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have been resolved in a different manner or that the issue presented was adequate to deserve encouragement to proceed further." Ouska, 246 F.3d at 1046; accord Tennard, 542 U.S. at 282; Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability should issue if the petitioner demonstrates "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."). Although Banks' underlying Motion to Alter Judgment (Doc. 30), which the Court ultimately denied, (see Doc. 31), should have been dismissed for lack of jurisdiction for reasons discussed infra, the Court finds that Banks has not the requisite showing for a certificate of appealability. The Court therefore DENIES Banks' request for such a certificate.
II. In Forma Pauperis
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 Banks' affidavit that he is indigent.
Furthermore, the Court does not believe that his appeal is frivolous or malicious, especially in light of the fact that the Court should have dismissed Banks' motion to alter judgment for lack of jurisdiction rather than deny it.*fn1 Accordingly, the Court GRANTS Banks' motion to proceed in forma pauperis.
For the foregoing reasons, the Court DENIES Bank's pro se request for a certificate of appealability. However, the Court GRANTS Banks' pro se Motion for Leave to Proceed in Forma Pauperis (Doc. 36) without prepayment of fees and costs.
IT IS SO ORDERED.