Lay v. Tanner

¶1Richard Lay has filed a motion for leave to proceed in forma pauperis (IFP) on appeal. To obtain leave to proceed IFP on appeal, Lay must demonstrate financial eligibility and a nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.1982).

¶2Lay wishes to argue on appeal that the district court erred in denying his motion for release pending disposition of his 28 U.S.C. § 2254 application. Lay contends that he is entitled to release because his § 2254 application has a high probability of success on its merits; Lay argues that he should be granted his release because he has made a substantial showing that his claims warrant habeas relief.

¶3Release pending disposition of a 28 U.S.C. § 2254 application will be granted only when the applicant has raised a substantial constitutional claim upon which he has a high probability of success, and also when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective. Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.1974). Regardless of the merits of Lay’s claims, upon which the district court has not yet ruled, he has failed to identify any “extraordinary or exceptional circumstances” that necessitate his release to make the habeas remedy effective. The district court did not err by denying Lay’s motion for release.

¶4Lay has not demonstrated that he will raise a nonfrivolous issue on appeal. His motion for leave to proceed IFP on appeal is DENIED. Lay’s appeal is DISMISSED as frivolous pursuant to 5th Cir. R. 42.2. In light of the dismissal of the appeal, Lay’s motion to correct his appellate brief is DENIED.

¶5IFP MOTION DENIED; MOTION TO CORRECT APPELLATE BRIEF DENIED; APPEAL DISMISSED.