McBride v. United States

Opinion

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

KEVIN D. MCBRIDE,

Petitioner,

v. Civil Case No. 25-cv-105-JPG Criminal Case No. 19-cr-40081-JPG-2 UNITED STATES OF AMERICA,

Respondent.

MEMORANDUM AND ORDER This matter comes before the Court on petitioner Kevin D. McBride’s motion for leave to appeal in forma pauperis (Doc. 12). McBride is appealing the Court’s April 4, 2025, denial of his motion under 28 U.S.C. § 2255. A federal court may permit a party to proceed on appeal without full pre-payment of fees provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(1) & (3); Fed. R. App. P. 24(a)(3)(A). A frivolous appeal cannot be made in good faith. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). The test for determining if an appeal is in good faith or not frivolous is whether any of the legal points are reasonably arguable on their merits. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 386 U.S. 738 (1967)); Walker v. O’Brien, 216 F.3d 626, 632 (7th Cir. 2000). McBride has not signed the affidavit in support of indigency or submitted a certified copy of his inmate trust fund account statement for the past six months. Without such a signed affidavit and a trust fund account statement, the Court cannot determine whether McBride is indigent. The Court DIRECTS the Clerk of Court to send McBride a copy of his motion/affidavit (Doc. 12, pages 1-3) for him to sign and return with a certified copy of his trust fund account statement on or before August 15, 2025. The Court RESERVES RULING on the motion for leave to proceed in forma pauperis. The Court DIRECTS the Clerk of Court to send a copy of this order to the Court of Appeals for use in conjunction with Appeal No. 25-2122. Additionally, the Court declined to address the question of a certificate of appealability when it denied McBride’s § 2255 motion. It does so now. Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings and Rule 22(b)(1) of

the Federal Rules of Appellate Procedure, the Court considers whether to issue a certificate of appealability of this final order adverse to the petitioner. A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Tennard v. Dretke, 542 U.S. 274, 282 (2004); Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 2001). To make such a showing, the petitioner must “demonstrate that reasonable jurists could debate whether [the] challenge in [the] habeas petition should have been resolved in a different manner or that the issue presented was adequate to deserve encouragement to proceed further.” Ouska, 246 F.3d at 1046; accord Buck v. Davis, 580 U.S. 100, 115 (2017); Miller-El v. Cockrell, 537 U. S. 322, 327 (2003). The Court finds that, although

McBride has made some arguably valid criticism of the Court’s order dismissing his § 2255 motion,1 he has not made a substantial showing of the denial of a constitutional right and, accordingly, DECLINES to issue a certificate of appealability. IT IS SO ORDERED. DATED: July 24, 2025

s/ J. Phil Gilbert J. PHIL GILBERT DISTRICT JUDGE

1 For example, the order chastised McBride for lying that the Court used the term “boy” at his sentencing hearing. A transcript of the plea hearing reveals that the Court did say, “So, boy, I’ve really gone off. . .” as an exclamation during that hearing when it found itself off track from its usual plea colloquy sequence. The context shows the Court was not referring to the defendant as a “boy.” So rather than being a liar, as the Court called McBride, it appears he was simply confused as to the proceeding where the word “boy” was uttered.