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Cooper v. Warden, Lebanon Correctional Institution

United States District Court, Sixth Circuit

May 29, 2013

DONALD COOPER, Petitioner,
v.
WARDEN, Lebanon Correctional Institution, Respondent.

REPORT AND RECOMMENDATIONS [1]

SHARON L. OVINGTON, Chief Magistrate Judge.

The Court previously denied and dismissed Donald Cooper's Petition for Writ of Habeas Corpus. The Court also declined to issue Cooper a Certificate of Appealability and denied Cooper leave to proceed in forma pauperis on appeal. (Doc. #s 12, 16). Cooper has filed a Notice of Appeal. (Doc. #18).

The case is presently before the Court upon Cooper's Application To Proceed In Forma Pauperis On Appeal without Prepayment of Fees (Doc. #20), and the record as a whole.

Cooper has proceeded in forma pauperis in this court. He may not, however, proceed in forma pauperis on appeal "if the trial court certifies in writing that [his appeal] is not taken in good faith." 28 U.S.C. §1915(a)(3). The test under 28 U.S.C. §1915(a) for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any nonfrivolous issue. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917 (1962). Thus an appellant's good-faith subjective motivation for appealing is not relevant. The issue instead is whether, viewed objectively, there is any non-frivolous issue to be litigated on appeal. Id., 369 U.S. at 445 , 82 S.Ct. at 921.

Cooper's Application to Proceed In Forma Pauperis on Appeal indicates that he is unable to pay the $450.00 filing fee required to pursue an appeal. He is therefore financially eligible for in forma pauperis status. However, his Application presents no new contentions indicating why his appeal is taken in good faith. As a result, and for the reasons set forth in the prior Report and Recommendations as well as the Entry and Order adopting it (Doc. #s 12, 16), objectively viewed, there are no non-frivolous issues to be litigated on appeal.

Accordingly, Cooper's appeal is not taken in good faith.

IT IS THEREFORE RECOMMENDED THAT:

1. Petitioner's Application To Proceed In Forma Pauperis On Appeal (Doc. ...

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