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Franklin v. Howard

United States District Court, W.D. Kentucky, Louisville

June 10, 2015

KEVIN FRANKLIN a/k/a/KEVIN SIMMS, Petitioner/Appellant,
v.
GREGORY HOWARD, WARDEN Respondent/Appellee.

MEMORANDUM AND ORDER

JOSEPH H. McKINLEY, Jr., Chief District Judge.

Petitioner/Appellant Kevin Franklin, pro se, has filed a motion to proceed on appeal in forma pauperis (DN 28).

The Sixth Circuit has held that the Prison Litigation Reform Act of 1995, 28 U.S.C. § 1915, does not apply to appeals of orders denying 28 U.S.C. § 2254 petitions. Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather, to appeal in forma pauperis in a § 2254 case, and thereby avoid the appellate filing fee, an appellant must seek permission from the district court under Federal Rule of Appellate Procedure 24(a). Id. at 952. Rule 24(a) provides that a party seeking pauper status on appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R. App. P. 24(a)(1). However, Rule 24(a) also provides that if the district court certifies that an appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the appellant must file his motion to proceed in forma pauperis in the appellate court. See Fed. R. App. P. 24(a)(4)-(5).

By Order entered March 19, 2015, the Court adopted the Findings of Fact and Conclusions of Law as set forth in the report submitted by the United States Magistrate Judge, denied the § 2254 petition, and denied a certificate of appealability (DN 23). In the Judgment entered the same date, the Court dismissed with prejudice the petition for writ of habeas corpus and denied a certificate of appealability (COA) (DN 24). The same reasons that caused this Court to deny the petition and COA also compel the Court to certify that the appeal is not taken in good faith.

IT IS THEREFORE ORDERED that the motion to proceed on appeal in forma pauperis (DN 28) is DENIED.

Consequently, Franklin must either pay the full $505.00 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty (30) days after service of notice of this Memorandum and Order. See Fed. R. App. P. 24(a).

Should Franklin choose to pay the fee, payment must be made payable to the Clerk, U.S. District Court and sent to Office of the Clerk, United States District Court, Western District of Kentucky, 601 West Broadway, Ste. 106, Louisville, Kentucky XXXXX-XXXX.

Franklin is WARNED that failure to comply with this Order within the time allotted may result ...


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