Opinion
CASE NO. 2:15-CV-00560
04-27-2016
STEPHEN H. WHITT, Petitioner, v. WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.
Magistrate Judge Elizabeth P. Deavers OPINION AND ORDER
On April 15, 2016, the Court denied Petitioner's Motion for Certificate of Appealability. (ECF No. 29.) Petitioner has filed a Motion for Leave to appeal in forma pauperis and Request for a Three Judge Panel. (ECF Nos. 31, 32.) For the reasons that follow, Petitioner's Motion for Leave to appeal in forma pauperis and Request for a Three Judge Panel, (ECF Nos. 31, 32), are DENIED.
Pursuant to 28 U.S.C. § 1915(a) (3), an appeal may not be taken in forma pauperis if the appeal is not taken in good faith. Federal Rule of Appellate Procedure 24(a)(3)(A) provides:
A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless:
Id. In addressing this standard, another court has explained:(A) the district court-before or after the notice of appeal is filed-certifies that the appeal is not taken in good faith[.]
The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). An appeal is not taken in good faith if the issue presented is frivolous.
Id. Accordingly, it would be inconsistent for a district court to determine that a complaint is too frivolous to be served, yet has sufficient merit to support an appeal in forma pauperis. See Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir.1983).Frazier v. Hesson, 40 F. Supp. 2d 957, 967 (W.D. Tenn.1999). Further,
"the 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).Penny v. Booker, No. 05-70147, 2006 WL 2008523, at *1 (E.D. Mich. July 17, 2006).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal is not taken in good faith.
Petitioner has also filed a Request for a Three Judge Panel pursuant to 28 U.S.C. § 2284(a), which provides that "[a] district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body." Petitioner does not challenge the apportionment of congressional districts or a statewide legislative body, nor does he identify any Act of Congress requiring a three-judge panel in this case. Moreover, this Court is without jurisdiction to consider Petitioner's motion pursuant to the filing of his appeal. See Freeman v. Pineda, No. 2:10-CV-00035, 2011 WL 1188410, at *1 (S.D. Ohio March 28, 2011) ("The filing of a notice of appeal divests this Court of jurisdiction except to act in aid of the appeal.") (citing Adkins v. Jeffries, 327 F. App'x 537, unpublished, 2009 WL 1083850, at *2 (6th Cir. April 27, 2009)).
Therefore, Petitioner's Motion for Leave to appeal in forma pauperis and Request for a Three Judge Panel, (ECF Nos. 31, 32), are DENIED.
IT IS SO ORDERED.
Date: April 27, 2016
s/James L. Graham
JAMES L. GRAHAM
United States District Judge