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Rafael Perez-Rodriguez v. United States of America

United States District Court, Northern District of Illinois


September 7, 2011

RAFAEL PEREZ-RODRIGUEZ
v.
UNITED STATES OF AMERICA

Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Robert M. Dow, Jr. than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Petitioner's application for leave to file his appeal in forma pauperis [14] is respectfully denied.

O[ For further details see text below.] Docketing to mail notices.Notices mailed by Judicial staff.

STATEMENT

On July 27, 2011, the Court issued a memorandum opinion and order [10] denying Petitioner Rafael Perez-Rodriguez's motion to vacate, set aside, or correct sentence. August 23, 2011, the Court issued an order [15] declining to certify any issues for appeal pursuant to 28 U.S.C. § 2253(c)(2). Petitioner now asks the Court to grant him in forma pauperis status for an appeal of the denial of his Section 2253(c)(2) petition. The standard governing the issuance of a certificate of appealability is more demanding than the standard for allowing a petitioner to proceed to appeal in forma pauperis. Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (noting that the standard for obtaining a certificate of probable cause, the predecessor to the certificate of appealability, is higher than the one used to evaluate good faith under 28 U.S.C. § 1915); Pate v. Stevens, 163 F.3d 437, 439 (7th Cir. 1998) (citing Barefoot and warning district courts not to apply an inappropriately high standard in making good faith determinations). To issue a certificate of appealability, a court must find that the petitioner has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Williams v. Parke, 133 F.3d 971, 975 (7th Cir. 1997). In contrast, to determine that a petitioner should be given leave to proceed on appeal in forma pauperis, a "good faith" standard applies, pursuant to which the district court need only find that a reasonable person could suppose that the appeal has some merit. Lee, 209 F.3d at 1026.

In this instance, even under the lower standard, the Court cannot conclude that Petitioner's appeal is in good faith, for the Court does not believe that a reasonable person "could suppose" that the appeal has any merit. Having presided over the trial, ruled on the post-trial motions, reviewed the Seventh Circuit's opinion dismissing Petitioner's direct appeal and allowing Petitioner's counsel to withdraw after filing an Anders brief (see Order in Appeal No. 09-1850 (7th Cir. Dec. 22, 2009) (non-precedential disposition)), and denying Petitioner's request for Section 2253(c)(2) relief and for a certificate of appealability, the Court is well versed in the issues raised by Petitioner and concludes that Petitioner's appeal would be "indisputably frivolous." See, e.g., Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir. 2000). Accordingly, Petitioner's application for leave to file his appeal IFP [14] is respectfully denied.

20110907

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