United States District Court, S.D. Illinois
DAVID R. HERNDON, Chief District Judge.
This matter is before the Court on McCoy's motion for permission to appeal in forma pauperis (Doc. 33). On July 31, the Court held a hearing on McCoy's 28 U.S.C. § 2255 petition (Doc. 22). Appointed counsel John Stobbs, II, appeared for McCoy and Assistant United States Attorney Angela Scott appeared for the government. During the hearing the Court orally denied and dismissed with prejudice McCoy's petition. That same day, the Clerk of the Court entered judgment reflecting the same (Doc. 23). Thereafter on August 6, 2014, McCoy filed a notice of appeal (Doc. 26).
Rule 24 of the Federal Rules of Appellate Procedure provides that a party to an action in federal district court who desires to appeal in forma pauperis must first file a motion in the district court requesting leave to appeal without payment of fees and costs. See Fed. R. App. P. 24(a)(1). The motion must be supported by an affidavit that: (1) shows the party's inability to pay or to give security for fees and costs; (2) claims an entitlement to redress; and (3) states the issues that the party intends to present on appeal. See id. "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). As to the good faith requirement, the Court must "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); Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000). That said, a district court is under an obligation "not to apply an inappropriately high standard when making good faith determinations." Pate v. Stevens, 163 F.3d 437, 438 (7th Cir. 1998).
In the case at bar, the Court is satisfied from McCoy's affidavit that he is indigent. However, the Court finds that his appeal is not taken in good faith. Based on the reasons the Court orally stated on the record, the Court finds that McCoy's appeal is not taken in good faith. Specifically, the Court held the following:
So for the record, in the 2255, the Court takes judicial notice of the stipulation of facts from 11-30076, United States of America vs. Christopher McCoy, which contains therein paragraph 5, ... which are facts which establish that the defendant enticed the purported minor in this case - turned out to be an undercover officer, but which establishes - which necessitates the attempt... the purported minor to produce child pornography, and that then triggers 18 United States Code, Section 2427, which established that sexual activity for purposes of Title 18 that - the term "sexual activity" for which a person can be charged with a criminal offense includes the production of child pornography, which distinguishes the Taylor case and then - and clearly then establishes that the defendant could have been charged with, enticement of a minor as set forth in Count 1 of the indictment, and therefore, the charge of enticement of a minor under 18 United States Code, Section 2422, was not improper. Mr. Schultz was not ineffective in failing to advise him of Taylor because it was not relevant to his case. There was nothing inappropriate about his advice to Mr. McCoy relative to his plea in this case.
Thus, the Court cannot say that McCoy's motion for leave to appeal in forma pauperis is in good faith. His appeal is thus determined to be in bad faith and he has failed to meet the requirements of Fed. R. App. P. 24(a)(1).
IT IS HEREBY ORDERED that McCoy's motion for leave to appeal in forma pauperis (Doc. 33) is DENIED. McCoy shall tender the appellate filing and docketing fee of $505.00 to the Clerk of Court in this District on or before September 4, 2014, or he may reapply to the Seventh ...