United States District Court, S.D. New York
June 10, 2004.
TERENCE BODDIE, Petitioner,
NEW YORK STATE DIVISION OF PAROLE, Respondent.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Petitioner Terence Boddie ("Boddie") has made an application
for leave to appeal his case in forma pauperis. For the
reasons set forth below, the motion is denied.
On September 30, 2003, Boddie's petition for habeas corpus was
denied by this Court. See Boddie v. New York State Division of
Parole, 285 F. Supp.2d 421 (S.D.N.Y. 2003). Boddie filed a
Notice of Appeal on October 7, 2003. However, the Notice of
Appeal was not transmitted to the Second Circuit until May 7,
2004. On May 13, 2004, Boddie filed a request for leave to appeal
in forma pauperis.
"The decision of whether to grant a request to proceed in
forma pauperis is left to the District Court's discretion
under 28 U.S.C. § 1915." Fridman v. City of New York,
195 F. Supp.2d 534, 536 (S.D.N.Y. 2002) (citing Potnick v. Eastern
State Hospital, 701 F.2d 243 (2d Cir. 1983)). The same standard is repeated in
Federal Rule of Appellate Procedure 24(a)(3)(A). "The Court's
discretion is limited in that: `An appeal may not be taken in
forma pauperis if the trial court certifies in writing that it is
not taken in good faith.'" Id. (quoting 28 U.S.C. § 1915(a)
(3)). The standard for "good faith" in pursuing an appeal is an
objective one. See Linden v. Harper & Row Publishers,
490 F. Supp. 297, 300 (S.D.N.Y. 1980) ("In civil as well as criminal
cases most appellants will subjectively pursue their appeals in
good faith, whatever their merits."); see also Coppedge v.
United States, 369 U.S. 438, 445 (1962)).
In the opinion denying Boddie's habeas petition, the merits of
Boddie's habeas petition were carefully considered and rejected.
An earlier, similar petition by Boddie was also considered and
rejected by this Court five weeks before this petition. See
Boddie v. New York State Division of Parole, 288 F. Supp.2d 431
(S.D.N.Y. 2003).*fn1 On May 10, 2004, the Second Circuit
issued a mandate in that case, denying Boddie's request for a
certificate of appealability and dismissing the appeal because
Boddie had not made a "substantial showing of the denial of a
constitutional right." Boddie v. New York State Division of
Parole, 03-2715, (2d Cir. May 10, 2004) (filed as Docket #23 in
case file 02 Civ. 8731). It is therefore certified, pursuant to § 1915(a)(3) and Rule 24(a)(3)(A), that Boddie's appeal would not
be taken in good faith, and the request for leave to appeal in
forma pauperis is denied.
It is so ordered.