United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
Johnny Smith moves the court to permit him to proceed in
forma pauperis on appeal. Because Smith's arguments
lack good faith, the Court denies petitioner's motion.
Smith is a federal prisoner currently incarcerated at the
Federal Correctional Institution in Oakdale,
Louisiana. On February 5, 2014, Smith reached a plea
agreement with the government and pleaded guilty to one count
of production of child pornography in violation of 18 U.S.C.
2251(a) and one count of possession of child pornography
involving a minor under the age of 12 in violation of 18
U.S.C. 2252(a)(4)(B). After determining that there was a factual
basis for the plea and that Smith was knowingly and
voluntarily pleading guilty, the Court adjudged Smith
of his plea agreement with the government, Smith waived his
right to contest his plea, conviction, or sentence on either
direct or collateral review, with two
exceptions. Smith reserved his right to bring a direct
appeal of any sentence imposed in excess of the statutory
maximum. Smith also reserved the right to bring a
post-conviction challenge if ineffective assistance of
counsel directly affected the validity of his waiver of
appeal and collateral challenge rights or the validity of the
guilty plea itself.
October 8, 2014, the Court sentenced Smith to 292 months
imprisonment as to Count One and 240 months imprisonment as
to Count Two, with all terms to run
concurrently. The Court also ordered a life term of
supervised release as to both counts. Smith's sentence was
within the advisory guidelines range and did not exceed the
relevant statutory maximums. At his sentencing, Smith
apologized for his crimes.
his conviction, Smith appealed to the Fifth Circuit, and his
appeal was summarily dismissed. Smith then filed a Motion
for Review of Sentence Pursuant to Federal Rule of Criminal
Procedure 52(b). The Court construed Smith's motion
as an application for post-conviction relief under 28 U.S.C.
§ 2255. On January 26, 2016, Smith filed a
supplemental motion arguing that his trial counsel and
appellate counsel were both ineffective.Smith also
filed a petition for audita querela as well as a supplemental
brief in support of his § 2255 application, each arguing
that the government violated his Fourth Amendment
rights. The Court denied Smith's motions and
declined to issue a certificate of
now moves the court to permit him to proceed in forma
pauperis on appeal. In his notice of appeal, Smith argues
that his trial and appellate counsel rendered ineffective
assistance and that his waiver of indictment was improperly
claimant may proceed with an appeal in forma
pauperis if he meets three requirements. First, the
claimant must submit “an affidavit that includes a
statement . . . that [he] is unable to pay such fees or give
security therefor.” 28 U.S.C. § 1915(a)(1). Based
on this information, the district court must determine
whether the costs of appeal would cause an undue financial
hardship. See Prows v. Kastner, 842 F.2d 138, 140
(5th Cir. 1998). Second, the claimant must provide the court
with an affidavit that “states the issues that the
party intends to present on appeal.” Fed. R. App. P.
24(a)(1)(C); accord 28 U.S.C. § 1915(a)(1)
(“Such affidavit shall state the nature of the . . .
appeal and affiant's belief that the person is entitled
to redress”). Third, the claimant's appeal must
“be taken in good faith.” 28 U.S.C. §
1915(a)(3); Fed. R. App. P. 24(a)(4)(B). “Good faith is
demonstrated when a party seeks appellate review of any issue
‘not frivolous.'” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (citing Coppedge v.
United States, 369 U.S. 438, 445 (1962)). Good faith
“does not require that probable success be shown,
” but rather “is limited to whether the appeal
involves legal points arguable on their merits (and therefore
not frivolous).” United States v.
Arroyo-Jurado, 477 F. App'x 150, 151 (5th Cir.
2012). “A complaint is frivolous if it lacks an
arguable basis either in law or in fact.” Kingery
v. Hale, 73 F. App'x 755, 755 (5th Cir. 2003).
motion to proceed in forma pauperis suggests that he
is unable to pay fees related to his appeal. The motion and
supporting documentation indicates that Smith's current
inmate balance in $30.50 and that he has no other
asserts. Smith's motion must nevertheless be
denied because the arguments he intends to raise on appeal do
not have an arguable basis either in law or in fact and are
argues that his trial counsel and appellate counsel each
rendered ineffective assistance. Specifically, Smith
alleges that his trial counsel coerced him into pleading
guilty through threats and failed to properly advise him that
his plea agreement contained a waiver of his right to
appeal.Smith also contends that his attorney
fraudulently obtained a waiver of indictment while he was on
suicide watch and failed to properly investigate and contest
the validity of a search warrant as well as the
jurisdictional basis for his federal charge.[2 ...