Palmer v. Warden Belmont Correctional Institution, No. 2:2008cv00726 - Document 74 (S.D. Ohio 2010)

Court Description: OPINION AND ORDER denying 71 Petitioner's Motion for Leave to Appeal in forma pauperis and denying 72 Petitioner's Motion to Appoint Counsel. Signed by Judge Gregory L Frost on 6/15/10. (sem1)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION ATROPIN PALMER, CASE NO. 2:08-cv-726 JUDGE FROST MAGISTRATE JUDGE KEMP Petitioner, v. MICHELLE EBERLIN, Warden, Respondent. OPINION AND ORDER On June 11, 2010, the Court denied Petitioner s motion for a certificate of appealability. (Doc. # 73.) On that same date, Petitioner filed a request to proceed in forma pauperis on appeal and motion for the appointment of counsel. (Docs. # 71, 72.) For the reasons that follow, the Court DENIES Petitioner s requests. (Docs. # 71, 72.) 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 also 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: (A) the district court--before or after the notice of appeal is filed--certifies that the appeal is not taken in good faith[.] Fed. R. App. P. 24(a)(3)(A). In addressing this standard, another court has explained: 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). However, [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). 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 that the appeal is not in good faith. Therefore, This Court DENIES Petitioner s request to proceed in forma pauperis on appeal. (Doc. # 71.) The Court also DENIES Petitioner s request for the appointment of counsel. (Doc. # 72.) IT IS SO ORDERED. /s/ Gregory L. Frost GREGORY L. FROST United States District Judge 2

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