Ellis v. United States

Full title: BERNARD ELLIS, Petitioner v. UNITED STATES OF AMERICA, Respondent

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

Date published: Jan 18, 2013

CAUSE NO. 3:12-CV-556 RM (N.D. Ind. Jan. 18, 2013)

Opinion

CAUSE NO. 3:12-CV-556 RM Arising out of 3:05-CR-131 RM

01-18-2013

BERNARD ELLIS, Petitioner v. UNITED STATES OF AMERICA, Respondent

Robert L. Miller

OPINION and ORDER

On October 16, 2012, the court denied Bernard Ellis's petition filed pursuant to 28 U.S.C. § 2255, in which he asked to have his sentence vacated based on his claim that his attorney was ineffective for not filing a motion to dismiss challenging (i) the federal government's authority to prosecute him for the crimes he committed in the State of Indiana, and (ii) this court's jurisdictional power to sit in judgment on any criminal case. Mr. Ellis has filed an appeal of that order and is before the court asking that a certificate of appealability be issued. Although Mr. Ellis hasn't filed a motion to proceed in forma pauperis on his appeal, the court will view his motion as including that request, as well.

Issuance of a certificate of appealability requires the court to find that Mr. Ellis has made "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). He has not. Mr. Ellis didn't establish that his counsel provided ineffective assistance by not challenging the government's constitutional and jurisdictional authority to pursue charges against him and/or this court's jurisdiction over criminal cases. His request for a certificate of appealability will be denied.

Federal Rule of Appellate Procedure 24(a)(3) provides that a financially indigent person may be permitted to proceed on appeal in forma pauperis unless the court "certifies that the appeal is not taken in good faith." In other words, the court must determine "that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000). Because no reasonable person could find that Mr. Ellis's appeal has any merit, the court concludes that his appeal is not taken in good faith, and his request for pauper status must be denied.

Based on the foregoing, Mr. Ellis's motion for a certificate of appealability and for leave to proceed in forma pauperis on appeal [docket #10 (in 3:12cv556) and # 198 (in 3:05cr131)] is DENIED.

SO ORDERED.

Robert L. Miller, Jr.

Judge, United States District Court
cc: B. Ellis

AUSA Schmid