United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON, DISTRICT JUDGE
before the Court is Fitts' second motion to proceed in
forma pauperis on appeal (doc. 42) and second motion
for certificate of appealability (doc. 43). On September 26,
2013, the Court denied and dismissed Fitt's 28 U.S.C.
§ 2254 petition with prejudice (doc. 21) and the Clerk
of the Court entered judgment (doc. 22). On October 23, 2013,
Fitts filed his original notice of appeal (doc. 23) along
with his original motion for certificate of appealability
(doc. 24). On October 31, 2013, the Court declined to issue a
certificate of appealability, (doc. 27), finding that Fitts
could make no substantial showing of a denial of a
constitutional right as the non-procedurally defaulted claim
was “not debatable among jurists of reason.” On
May 13, 2014, the Seventh Circuit Court of Appeals,
construing it as an application for certificate of
appealability, denied Fitts' original notice of appeal
(appellate case no. 13-3433) and issued its mandate on June
4, 2014. See doc. 39.
further activity occurred in the district court's docket
or the appellate court's docket until February 8, 2018,
when petitioner Fitts filed his current notice of appeal and
the aforementioned second motions for leave to appeal in
forma pauperis and for issuance of a certificate of
appealability. Based on the following, the Court
DENIES the motion to proceed in forma
pauperis on appeal (doc. 42) and DENIES as
moot the motion for certificate of appealability
to 28 U.S.C. § 1915(a)(3), “[a]n appeal may not be
taken in forma pauperis if the trial court certifies in
writing that it is not taken in good faith.”
Id. To determine that an appeal is taken in good
faith, the 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, 026
(7th Cir. 2000)). No reasonable person could reach the
conclusion that the appeal is taken in good faith as the
Court has already found one of Fitts' claims to be
procedurally defaulted and the other to be meritless.
Additionally, this is petitioner Fitts' second appeal
from the same Order. This second appeal, opened under case no.
18-1329 in the Seventh Circuit Court of Appeals, is extremely
untimely. As the Seventh Circuit has already stated in an
Order directed to petitioner to show cause why his appeal
should not be dismissed for lack of
jurisdiction: “In this case judgment was entered
on September 26, 2013, and the notice of appeal
(petitioner's second in this case - see Appeal
No. 13-3433) was filed . . . well over four years
late.” See appeal no. 18-1329, doc. 2. This
Court did not grant any extension for the appeals period
under Federal Rule of Appellate Procedure 4(a)(5),
nonetheless grant an extension that has lasted for years.
it is HEREBY ORDERED that Fitts' motion for leave to
proceed in forma pauperis (doc. 42) is DENIED.
Petitioner Fitts shall tender the appellate filing and
docketing fee or may reapply with the Seventh Circuit Court
of Appeals for leave to proceed in forma pauperis on
appeal, pending the outcome and direction of the
Seventh Circuit Court of Appeals based on any briefing
submitted on behalf of Fitts' untimely second notice of
appeal. Lastly, the Court DENIES as moot the motion for
certificate of appealability (doc. 43) as the Court
previously declined the certificate.
 Jacqueline Lashbrook, as the current
Warden at Menard Correctional Center, has been substituted
above as the proper respondent.
 After review of the motion for
certificate of appealability (doc. 43), it is possible that
petitioner Fitts believes he has filed a successive section
2254 petition, opposed to an appeal of the district
court's Order denying his original 2254 petition.
Regardless of if that is true, petitioner has not followed
the procedure dictated by 28 U.S.C. § 2244 for filing a
successive section 2254 petition, in that Fitts has not
presented a new rule of constitutional law or new facts
underlying his case nor has he sought an order from the
appropriate court of appeals authorizing the district court
to consider the second application. See 28 U.S.C.
§ 2244 2(A) and (B) and. § 2244 3(A).
 As an aside, petitioner Fitts never
filed a petition for writ of certiorari following the denial
of his first appeal, which would have been the proper path of
 Per the Seventh Circuit's Order,
petitioner Fitts has until March 1, 2018 to file any briefing
to support why his second appeal should not be dismissed by
the appellate court. Until then, ...