Banks v. United States

3:08-cv-00063 | S.D. Ill. | May 14, 2010

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS

ROBERT R. BANKS, Petitioner, vs. Civil No. 08-cv-63-JPG UNITED STATES OF AMERICA,

Respondent. MEMORANDUM AND ORDER This matter comes before the Court on Petitioner Robert R. Banks’ pro se Notice of Appeal (Doc. 32) and Motion for Leave to Proceed in Forma Pauperis (Doc. 36). Pursuant to Federal Rule of Appellate Procedure 22(b)(1), the Court construes Banks’ notice of appeal as a request for a certificate of appealability. See Ouska v. Cahill-Masching , 246 F.3d 1036" date_filed="2001-04-12" court="7th Cir." case_name="Patricia Ouska v. Lynn Cahill-Masching, 1">246 F.3d 1036, 1045 (7th Cir. 2001). A § 2255 petitioner, such as Banks, may not proceed on appeal without a certificate of appealability. 28 U.S.C. § 2253(c)(1); see Ouska , 246 F.3d 1036" date_filed="2001-04-12" court="7th Cir." case_name="Patricia Ouska v. Lynn Cahill-Masching, 1">246 F.3d at 1045.

ANALYSIS I. Certificate of Appealability A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke , 542 U.S. 274" date_filed="2004-06-24" court="SCOTUS" case_name="Tennard v. Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division">542 U.S. 274, 282 (2004) ; Ouska , 246 F.3d 1036" date_filed="2001-04-12" court="7th Cir." case_name="Patricia Ouska v. Lynn Cahill-Masching, 1">246 F.3d at 1045. To make such a showing, the petitioner must “demonstrate that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have been resolved in a different manner or that the issue presented was adequate to deserve encouragement to proceed further.” Ouska , 246 F.3d 1036" date_filed="2001-04-12" court="7th Cir." case_name="Patricia Ouska v. Lynn Cahill-Masching, 1">246 F.3d at 1046; accord Tennard , 542 U.S. at 282; Slack v. McDaniel , 529 U.S. 473" date_filed="2000-04-26" court="SCOTUS" case_name="Slack v. McDaniel">529 U.S. 473, 484 (2000) (certificate of appealability should issue if the petitioner demonstrates “that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.”). Although Banks’ underlying Motion to Alter Judgment (Doc. 30), which the Court ultimately denied, ( see Doc. 31), should have been dismissed for lack of jurisdiction for reasons discussed infra , the Court finds that Banks has not the requisite showing for a certificate of appealability. The Court therefore DENIES Banks’ request for such a certificate. II. In Forma Pauperis

A federal court may permit a party to proceed on appeal without full pre-payment of fees provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). A frivolous appeal cannot be made in good faith. Lee v. Clinton , 209 F.3d 1025, 1026-27 (7th Cir. 2000). The test for determining if an appeal is in good faith or not frivolous is whether any of the legal points are reasonably arguable on their merits. Neitzke v. Williams , 490 U.S. 319" date_filed="1989-05-01" court="SCOTUS" case_name="Neitzke v. Williams">490 U.S. 319, 325 (1989) (citing Anders v. California , 386 U.S. 738" date_filed="1967-05-08" court="SCOTUS" case_name="Anders v. California">386 U.S. 738 (1967)); Walker v. O’Brien , 216 F.3d 626" date_filed="2000-06-22" court="7th Cir." case_name="Jimmy Walker v. J.T. O'brien, and Joseph W. Finfrock v. Craig A. Hanks">216 F.3d 626, 632 (7th Cir. 2000).

The Court is satisfied from Banks’ affidavit that he is indigent. Furthermore, the Court does not believe that his appeal is frivolous or malicious, especially in light of the fact that the Court should have dismissed Banks’ motion to alter judgment for lack of jurisdiction rather than deny it. [1] Accordingly, the Court GRANTS Banks’ motion to proceed in forma pauperis .

CONCLUSION

For the foregoing reasons, the Court DENIES Bank’s pro se request for a certificate of appealability. However, the Court GRANTS Banks’ pro se Motion for Leave to Proceed in Forma Pauperis (Doc. 36) without prepayment of fees and costs.

IT IS SO ORDERED.

DATED: May 14, 2010

s/ J. Phil Gilbert

J. PHIL GILBERT

DISTRICT JUDGE

In order for this Court to consider a successive petition, the Seventh Circuit Court of Appeals must first certify the successive petition pursuant to 28 U.S.C. § 2255, ¶ 8. Nunez v. United States , 96 F.3d 990" date_filed="1996-10-17" court="7th Cir." case_name="Rafael Nunez v. United States">96 F.3d 990, 991 (7th Cir. 1996). However, the Court of Appeals never made such a certification; therefore, the Court should have dismissed Banks’ motion for lack of jurisdiction rather than deny it.

NOTES

[1] A post-judgment motion such as a Rule 60(b) motion that advances a new claim, that is, a new ground for relief from a conviction, or an attack on the Court’s prior resolution of a ground for relief on the merits is a successive petition. See Gonzalez v. Crosby , 545 U.S. 524" date_filed="2005-06-23" court="SCOTUS" case_name="Gonzalez v. Crosby">545 U.S. 524, 531 (2005) ( habeas context); see United States v. Scott , 414 F.3d 815" date_filed="2005-07-12" court="7th Cir." case_name="United States v. David Scott">414 F.3d 815, 816 (7th Cir. 2005) (considering post-judgment Rule 6(e) motion). The underlying motion largely reasserts that Banks’ guilty plea was involuntary; as such, it is a successive petition under the rule of Gonzalez .