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BODDIE v. NEW YORK STATE DIVISION OF PAROLE

United States District Court, S.D. New York


June 10, 2004.

TERENCE BODDIE, Petitioner,
v.
NEW YORK STATE DIVISION OF PAROLE, Respondent.

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

MEMORANDUM OPINION

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.


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