“We lack jurisdiction to review the underlying judgment denying [the petitioner’s] § 2254 petition because he did not file a timely tolling motion nor did he file a notice of appeal within 30 days.”
How later courts described this case
- “We lack jurisdiction to review the underlying judgment denying [the petitioner’s] § 2254 petition because he did not file a timely tolling motion nor did he file a notice of appeal within 30 days.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FARRELL WAYNE CROSS, )
)
Petitioner, )
)
vs. ) Case No. 4:19-cv-03194-MTS
)
EILEEN RAMEY, )
)
Respondent. )
MEMORANDUM AND ORDER
This matter comes before the Court on Petitioner Farrell Wayne Cross’s Motion for
Leave to Proceed in Forma Pauperis on Appeal, Doc. [42], and Motion for Certificate of
Appealability, Doc. [43]. On March 31, 2023, this Court denied Petitioner’s Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254, Doc. [39], and entered a Judgment of Dismissal with
Prejudice, Doc. [40]. On June 26, 2023, the Clerk of Court received and docketed Petitioner’s
Motion for Leave to Proceed in Forma Pauperis on Appeal and Motion for Certificate of
Appealability. The Court previously concluded that Petitioner has not made a substantial
showing of a denial of a constitutional right and that the Court would not grant a certificate of
appealability. Doc. [39] at 25; see also 28 U.S.C. § 2253(c)(2). That conclusion remains true
today. Therefore, the Court will deny Petitioner’s Motion for Certificate of Appealability.
The Court also now certifies that Petitioner’s appeal would not be “taken in good faith.”
See 28 U.S.C. § 1915(a)(3) (“An appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.”). Petitioner failed to timely appeal this
Court’s denial of his habeas Petition. See Fed. R. App. P. 4(a)(1)(A); see also Perry v. Brown,
854 F. App’x 725, 727 (7th Cir. 2021) (“A state prisoner must appeal from the denial of a habeas
petition within 30 days of the judgment.”); Bonner vy. Sullivan, 123 F. App’x 286, 287 (9th Cir.
2005) (“We lack jurisdiction to review the underlying judgment denying [the petitioner’s] § 2254
petition because he did not file a timely tolling motion nor did he file a notice of appeal within
30 days.”); Sambolin-Robles v. Corr. Admin., 21-1398, 2021 WL 5549645, at *1 (1st Cir. Oct.
14, 2021), cert. denied, 142 S. Ct. 2682 (2022) (dismissing a petitioner’s appeal of the denial of
his § 2254 habeas petition where the petitioner failed to file a notice of appeal within thirty days
of the district court’s judgment). Therefore, the Court will deny Petitioner’s Motion for Leave to
Proceed in Forma Pauperis on Appeal.
Accordingly,
IT IS HEREBY CERTIFIED that Petitioner Farrell Wayne Cross’s appeal would not be
taken in good faith.
IT IS HEREBY ORDERED that Petitioner Farrell Wayne Cross’s Motion for Leave to
Proceed in Forma Pauperis on Appeal, Doc. [42], is DENIED.
IT IS FURTHER ORDERED that Petitioner Farrell Wayne Cross’s Motion for
Certificate of Appealability, Doc. [43], is DENIED.
Dated this 28th day of June 2023. |) he
te
UNITED STATES DISTRICT JUDGE
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