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Jose Abraham Espino-Rangel v. Lisa J. W. Hollingsworth

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


January 5, 2011

JOSE ABRAHAM ESPINO-RANGEL, PETITIONER,
v.
LISA J. W. HOLLINGSWORTH, RESPONDENT.

The opinion of the court was delivered by: Murphy, District Judge:

MEMORANDUM AND ORDER

This matter is before the Court on Petitioner's motion for leave to proceed in forma pauperis on appeal (Doc. 9).

"An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). To conclude that an appeal is in good faith, "a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000), citing Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000); see also Moran v. Sondalle, 218 F.3d 647, 651 (7th Cir. 2000) ("because these appeals are not in good faith for purposes of § 1915(a)(3), we revoke the orders permitting the appellants to proceed in forma pauperis"); Tolefree v. Cudahy, 49 F.3d 1243, 1244 (7th Cir. 1995) ("[T]he granting of leave to appeal in forma pauperis from the dismissal of a frivolous suit is presumptively erroneous and indeed self-contradictory.").

This action brought under 28 U.S.C. § 2241 was dismissed pursuant to 28 U.S.C. § 2254 Rule 4. Implicit in such a dismissal is a finding that the petition for writ of habeas corpus was legally frivolous, Johnson v. Gramley, 929 F.2d 350, 351 (7th Cir. 1991), as that term is used in 28 U.S.C. § 1915(e)(2), i.e., that the petition "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). When the underlying district court action is legally frivolous, any appeal from its summary dismissal is frivolous, too; accordingly, leave to proceed in forma pauperis on appeal is DENIED. Petitioner shall tender the appellate filing and docketing fee of $455 to the Clerk of Court in this District within FIFTEEN (15) DAYS of the date of entry of this Order, or he may reapply to the United States Court of Appeals for the Seventh Circuit for leave to proceed in forma pauperis on appeal.

IT IS SO ORDERED.

G. PATRICK MURPHY United States District Judge

20110105

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