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United States v. Kibler

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS


June 14, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
LEE FLOYD KIBLER, 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 Lee Floyd Kibler's pro se Motion for Leave to Appeal in Forma Pauperis (Doc. 247).

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) (2006); 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).

Here, Kibler has not fully filled out the application to proceed in forma pauperis, which also provides the boilerplate of the instant motion. Namely, Kibler has not explained "[t]he nature of [his] action, defense, or other proceeding or the issues [he] intend[s] to present on appeal . . . ." (Doc. 247, p. 1). Of course, without this explanation, the Court is unable to determine whether Kibler's appeal is non-frivolous or made in good faith.

Morever, the Court notes that the underlying appeal represents Kibler's fourth direct attempt to reverse his criminal conviction, in addition to the habeas petition brought under 28 U.S.C. § 2255. See Kibler v. USA, Case No. 03-cv-4154-JPG (S.D. Ill. Sept. 4, 2003). This posture itself raises serious doubts as to the meritoriousness of the instant appeal and will likely prove preclusive if the motion to appeal in forma pauperis is re-filed.*fn1

For the foregoing reasons, the Court DENIES the instant motion (Doc. 247).

IT IS SO ORDERED.


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