Opinion
Case Number. 05-70147.
July 17, 2006
OPINION AND ORDER GRANTING PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner James Ray Penny filed a pro se petition for a writ of habeas corpus. On September 6, 2005, the Court issued an opinion and order dismissing the petition because Petitioner failed to satisfy the "in custody" requirement of 28 U.S.C. § 2254(a). Petitioner subsequently sought a certificate of appealability, which the Court denied. Now before the Court is Petitioner's Motion to Proceed In Forma Pauperis On Appeal.
Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. An appeal may not be taken in forma pauperis if the court determines that it is not taken in good faith. 28 U.S.C. § 1915(a)(3). "[T]he standard governing the issuance of a certificate of appealability is more demanding than the standard for determining whether an appeal is in good faith." U.S. v. Cahill-Masching, 2002 WL 15701, * 3 (N.D. Ill. Jan. 4, 2002). "[T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000). While the Court has held that jurists of reason would not find the Court's determination that Petitioner failed to satisfy the "in custody requirement" to be debatable or wrong, the Court finds that an appeal may be taken in good faith. The Court, therefore, shall grant the Motion to Proceed In Forma Pauperis on Appeal.
Accordingly, IT IS ORDERED that Petitioner's Motion to Proceed In Forma Pauperis on Appeal is GRANTED.