United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE
before the Court are Barnes's motion for leave to file
and proceed on appeal in forma pauperis (Doc. 70), motion for
certificate of appealability (Doc. 71) and motion to prepare,
certify and transmit appeal (Doc. 72). Based on the
following, the Court DENIES the motion for
leave to proceed in forma pauperis and DENIES as
moot the motion for certificate of appealability and
the motion to prepare, certify and transmit appeal.
was convicted of first degree murder at a bench trial in the
Madison County, Illinois Circuit Court in October 2010. He
was sentenced to forty-five years imprisonment. In July 2016,
Barnes filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging, in short, that: his
underlying conviction is not sound because Illinois law was,
or is, contrary to federal law regarding the right to bear
arms; and, based on his interpretations of the law, the facts
presented during the bench trial did not support a conviction
beyond a reasonable doubt. On April 12, 2017, the Court
entered a Memorandum and Order dismissing his petition as
untimely and declining to issue a certificate of
appealability (Doc. 29) and Judgment reflecting the same was
entered (Doc. 30). Thereafter, the Court granted
respondent's motion to alter judgment finding that the
dismissal should be with prejudice as the petition was found
to be untimely (Doc. 34). On April 24, 2017, the Amended
Judgment was entered reflecting the same (Doc. 35).
Subsequently on June 14, 2017, the Court entered a Memorandum
and Order denying all of Barnes' post judgment motions
(Docs. 36, 37, 38, 39, 40 & 41).
Barnes filed a notice of appeal (Doc. 43); a motion for
certificate of appealability (Doc. 44) and a motion for leave
to appeal in forma pauperis (Doc. 45). On June 23, 2017, the
Court found as moot the motion for certificate of
appealability and directed Barnes to file that motion with
the Seventh Circuit Court of Appeals (Doc. 46) and three days
later, the Court denied Barnes' motion for leave to
appeal in forma pauperis finding that his appeal was not
taken in good faith as his habeas corpus petition was
untimely (Doc. 47). On July 5, 2017, Barnes filed another
notice of appeal of the Memorandum and Order denying his post
judgment motions (Doc. 52). On July 18, 2017, the Seventh
Circuit issued its Mandate dismissing, pursuant to Federal
Rule of Appellate Procedure 42(b), Barnes' notice of
appeal filed on July 5, 2017 (Doc. 61).
January 8, 2018, the Seventh Circuit issued an Order stating
An Illinois jury convicted Diamond Barnes in 2010 of first
degree murder, and he was sentenced to 45 years in prison. In
2016, Barnes filed a habeas corpus petition under 28 U.S.C.
§ 2254, which the district court dismissed as untimely.
We declined to issue a certificate of appealablity.
Barnes v. Lashbrook, No. 17-2326 (7th Cir. Nov. 6,
2017). Barnes's petition for reconsideration still is
Barnes now has filed an application, purportedly under 28
U.S.C. § 2244(b)(3), asking our permission to file a
petition under 28 U.S.C. §2241 rather than § 2254.
But a petitioner does not require this court's
authorization under §2244 to file a § 2241
petition. Valona v. United States, 138 F.3d 693, 694
(7th Cir. 1998). On the other hand, because he is challenging
a state conviction, § 2241 relief is categorically
unavailable to Barnes: the exclusive vehicle for challenging
his conviction is a § 2254 petition. See Walker v.
O'Brian, 216 F.3d 626, 633 (7th Cir. 2000).
And if Barnes wished to file another § 2254 petition
after all, this application would not satisfy the requirement
of § 2244(b)(2) that he present either a new rule of
constitutional law or a new and compelling evidence of
innocence. Indeed, Barnes raises the same claim that he
argued in his first § 2254 petition: that his conviction
violates his Second Amendment right to bear arms.
Thus, we DENY authorization and
DISMISS Barnes's application.
(Doc. 65). Fourteen days later, the Seventh Circuit issued is
Mandate in this case dismissing Barnes's appeal (Doc.
66). The Mandate states: “On consideration of the
motion filed by petitioner-appellant on December 13, 2017,
and construed as a petition for rehearing, all members of the
original panel have voted to deny the petition for panel
rehearing. Accordingly, the petition for rehearing is hereby
DENIED.” (Doc. 66-2).
March 6, 2018, the Court denied Barnes's Rule 60(b)
post-judgment on Section 2244 statute of limitations/motion
for reconsideration (Doc. 68). Still undeterred after all the
adverse rulings, Barnes filed the above motions seeking
relief along with a notice of appeal in this closed case on
March 30, 2018. Based on the following, the Court finds that
the appeal is not taken in good faith.
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 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)). Here, the Court finds that no
reasonable person could reach the conclusion that the appeal
is taken in good faith based on the previous rulings of this
Court and the rulings of the Seventh Circuit Court of Appeals
in this matter.
IS HEREBY ORDERED that Barnes's' motion for
leave to proceed in forma pauperis on appeal (Doc. 70) is
DENIED. Barnes shall tender the appellate
filing and docketing fee of $505.00 to the Clerk of the Court
in this District within THIRTY (30) days of
the date of the entry of this Order or he may reapply with
the Seventh Circuit Court of Appeals for leave to proceed in
forma pauperis on appeal. Further, the Court denies as moot
the motion for certificate of appealability and the motion to
prepare, certify and transmit record on appeal (Docs. 71
& 72). The Court previously declined to issue a
certificate of appealability when it dismissed the case (Doc.
29) and the Clerk of the Court routinely prepares and
transmits the appeal records to the Seventh Circuit Court of
Appeals. Barnes should filed the motion for certificate of
appealability with the Seventh Circuit Court of Appeals.