IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.)

TREMAYNE CORA #B79855, )

)

Petitioner, )

)

v. ) No. 11 C 9230

) (USCA No. 13-1383)

MICHAEL LEMKE, Warden, )

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)

Respondent. )

MEMORANDUM ORDER

After having resolved this 28 U.S.C. §2254 action adversely

to habeas petitioner Tremayne Cora (“Cora”), this Court issued a

February 14, 2013 memorandum order (“Order”) that (1) provided a

summary explanation of the reasons for rejecting each of the four

grounds on which Cora had sought to rely and (2) concluded by

denying the issuance of a certificate of appealability (“COA”), a

subject on which a ruling is called for by Rule 11(a) of the

Rules Governing Section 2254 Cases in the United States District

Courts. On the same February 14 date that this Court issued the

Order, the Court of Appeals also denied a COA.

On March 19 Cora filed in the Court of Appeals a motion for

leave to proceed on appeal in forma pauperis. But 2because that

motion should have been filed in this District Court in the first

instance, our Court of Appeals caused the motion to be

 Because Michael Lemke has succeeded Marcus Hardy as the 1

Warden at Stateville Correctional Center, this case caption has

reflected his substitution as respondent (see Fed. R. Civ. P.

25(d).
transferred here .

As chance would have it, that transfer came hard on the

heels of a March 13 opinion by our Court of Appeals in Thomas v.

Zatecky, No. 13-1136, 2013 WL 952434 (7th Cir. Mar. 13) that had

provided a thoughtful--and highly useful--analysis of the

relative standards applicable as between granting or denying a

COA and granting or denying a motion for in forma pauperis

treatment. As the penultimate paragraph in Thomas, id. at *2

explained:

We therefore deny Thomas's request that we permit him,

and all other applicants for collateral relief, to file

appeals without regard to the fees required by §1913

and the resolutions of the Judicial Conference. Thomas

is, however, entitled to contest in this court the

propriety of the district judge's declaration that the

appeal has been taken in bad faith--a phrase that

despite lay usage has been understood to mean objective

frivolousness. See Lee v. Clinton, 209 F.3d 1025 (7th

Cir. 2000). A frivolous appeal never meets the

standard for a certificate of appealability. But an

appeal can be nonfrivolous and still flunk the standard

established by §2253(c)(2), which conditions a

certificate of appealability on “a substantial showing

of the denial of a constitutional right.”

Hence it is clear that Cora’s failure to meet the more

demanding COA standard does not control the resolution of the

current motion. But this Court has long been citing Lee v.

Clinton for the proposition that in forma pauperis status

requires not only a showing of indigency but also the appellant’s

advancement of a legally nonfrivolous basis (in objective terms)

for the potential reversal of a district court ruling.

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On that score this Court holds that the analysis set out in

the Order establishes that Cora has also flunked the less

demanding Lee v. Clinton standard. Accordingly Cora’s motion for

leave to appeal in forma pauperis is denied--and as the Court of

Appeals’ March 27 order has already reminded Cora, he must refile

the motion in that court pursuant to Fed. R. App. 24.

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: April 5, 2013

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