Opinion
Case No. 1:11-cv-1123
03-27-2012
BARRY WAYNE ADAMS, Petitioner, v. CARMEN PALMER, Respondent.
Honorable Paul L. Maloney
ORDER REGARDING LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence for failure to pay child support, Mich. Comp. Laws § 760.165. On December 14, 2011, the Court entered an order and judgment dismissing the petition and denying a certificate of appealability (docket ##8, 9). The order and judgment of dismissal followed the Court's de novo review of Petitioner's objections to the report and recommendation of the magistrate judge. Petitioner now has filed a notice of appeal (docket #13) and a motion for leave to proceed in forma pauperis on appeal (docket #16).
Federal Rule of Appellate Procedure 3(e) provides that the appellant must pay all required fees at the time a notice of appeal is filed with the district court. Under Sixth Circuit Internal Operating Procedure 103(1), the docketing fee for a case on appeal is $450.00. In addition, under 28 U.S.C. § 1917, a $5.00 filing fee must be paid to the district court. Petitioner has not paid the required fees.
Petitioner was permitted to proceed before this Court in forma pauperis. Pursuant to Rule 24(a) of the Federal Rules of Appellate Procedure, he may continue that status on appeal unless this court certifies that his appeal is not taken in good faith. Good faith is judged objectively, and an appeal is taken in good faith when it seeks review of an issue which is not frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1961).
Detailed reasons for dismissal of the petition as time-barred were provided in the report and recommendation (docket #6) that was adopted by this Court. The Court reaffirms its decision and finds that an appeal from the dismissal of this action would be frivolous. The Court, therefore, certifies that the appeal is not taken in good faith. If Petitioner wishes to proceed with his appeal, he must pay the $455.00 appellate fee to the Clerk of this Court within 28 days of this order. Alternatively, Petitioner may file a motion for leave to proceed in forma pauperis in the Court of Appeals pursuant to the requirement set forth in FED. R. APP. P. 24(a)(5). Accordingly:
IT IS ORDERED that Petitioner is DENIED leave to proceed in forma pauperis on appeal. The Court certifies that the appeal is not taken in good faith. If Petitioner wishes to proceed with his appeal, he must pay the $455.00 appellate fee to the Clerk of this Court within 28 days of this order. Alternatively, Petitioner may file a motion for leave to proceed in forma pauperis in the Court of Appeals pursuant to the requirement set forth in FED. R. APP. P. 24(a)(5).
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Paul L. Maloney
Chief United States District Judge