UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

_____________________________________________________________________

ANDREW GROSS,

Petitioner,

v. Case No: 2:08-CV-14851

UNITED STATES 

ATTORNEY GENERAL, et al., 

Respondent.

__________________________________/

OPINION AND ORDER GRANTING PETITIONER’S APPLICATION FOR LEAVE TO

PROCEED WITHOUT PREPAYMENT OF FEES AND DENYING PETITIONER’S

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On December 31, 2008, this court issued an opinion and order dismissing 

Petitioner’s writ of habeas corpus brought pursuant to 28 U.S.C. §2241. Petitioner has

since filed two motions which are now before the court. The first, an application for

leave to proceed without prepayment of fees, was filed with Petitioner’s habeas petition. 

The petition was summarily dismissed before the court ruled on that motion however. 

The second motion seeks leave to proceed in forma pauperis motion on appeal. For

the reasons stated below, the court will grant the application for leave to proceed

without prepayment of fees and deny the motion for leave to proceed in forma pauperis 

on appeal.

As to Petitioner’s motion to proceed without prepayment of fees, the Court has

reviewed the motion, the affidavit in support, and the financial status information. Based

upon that review, the court is sufficiently satisfied that Petitioner’s motion should be

granted.

2:08-cv-14851-RHC-CEB Doc # 8 Filed 03/31/09 Pg 1 of 3 Pg ID 40
2

Petitioner has also filed an application for leave to proceed in forma pauperis on

appeal. Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a district

court action who desires to appeal in forma pauperis must file a motion in the district

court. The court may grant leave to proceed in forma pauperis if it finds that an appeal

is being taken in good faith. See Foster v. Ludwick, 208 F.Supp.2d 750, 764-65 (E.D.

Mich. 2002); 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a). The good faith standard is

an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). An appeal is

not taken in good faith if the issue presented is frivolous, id., though the court does not

require a showing of probable success on the merits. Foster, 208 F.Supp.2d at 765. 

The same considerations that led the court to dismiss the original 28 U.S.C. §

2241 petition also compel the conclusion that an appeal would not be taken in good

faith. Briefly, a federal prisoner may bring a claim challenging his conviction or the

imposition of sentence under 28 U.S.C. §2241 only if it appears that the remedy

afforded under §2255 is inadequate or ineffective to test the legality of the petitioner’s

detention. Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999). In his prior petition,

Petitioner did not mention or even argue that a §2255 remedy would have been

inadequate. Petitioner now merely states that his appeal is “in good faith and in pursuit

of justice.” (Pet.’s Mot. at 1.) He provides no further grounds for his appeal, leaving the

court to assume he will reassert his previous, and frivolous, argument for relief under 28

U.S.C. § 2241. The court cannot agree that the appeal is taken in good faith and in

forma pauperis status will be denied.

2:08-cv-14851-RHC-CEB Doc # 8 Filed 03/31/09 Pg 2 of 3 Pg ID 41
S:\Cleland\JUDGE'S DESK\C1 ORDERS\08-14851.GROSS.Deny.IFP.Grant.Prepay.ka.eew.wpd

3

Accordingly, IT IS ORDERED that Petitioner’s “Application for Leave to Proceed

Without Prepayment of Fees” [Dkt. # 2] is GRANTED.

IT IS FURTHER ORDERED that Petitioner’s “Motion for Leave to Proceed on

Appeal In Forma Pauperis” [Dkt. #7] is DENIED. The court CERTIFIES, pursuant to

Federal Rule of Appellate Procedure 24(a), that Petitioner’s appeal is not taken in good

faith, and he may not proceed on appeal in forma pauperis. 

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: March 31, 2009

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, March 31, 2009, by electronic and/or ordinary mail.

 S/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

2:08-cv-14851-RHC-CEB Doc # 8 Filed 03/31/09 Pg 3 of 3 Pg ID 42