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United States v. Smith

United States District Court, E.D. Louisiana

July 13, 2017

UNITED STATES OF AMERICA
v.
JOHNNY SMITH

         SECTION “R” (3)

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE.

         Petitioner Johnny Smith moves the court to permit him to proceed in forma pauperis on appeal.[1] Because Smith's arguments lack good faith, the Court denies petitioner's motion.

         I. BACKGROUND

         Johnny Smith is a federal prisoner currently incarcerated at the Federal Correctional Institution in Oakdale, Louisiana.[2] 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).[3] After determining that there was a factual basis for the plea and that Smith was knowingly and voluntarily pleading guilty, the Court adjudged Smith guilty.[4]

         As part 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.[5] Smith reserved his right to bring a direct appeal of any sentence imposed in excess of the statutory maximum.[6] 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.[7]

         On 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.[8] The Court also ordered a life term of supervised release as to both counts.[9] 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.[10]

         Following his conviction, Smith appealed to the Fifth Circuit, and his appeal was summarily dismissed.[11] Smith then filed a Motion for Review of Sentence Pursuant to Federal Rule of Criminal Procedure 52(b).[12] The Court construed Smith's motion as an application for post-conviction relief under 28 U.S.C. § 2255.[13] On January 26, 2016, Smith filed a supplemental motion arguing that his trial counsel and appellate counsel were both ineffective.[14]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.[15] The Court denied Smith's motions and declined to issue a certificate of appealability.[16]

         Smith now moves the court to permit him to proceed in forma pauperis on appeal.[17] In his notice of appeal, Smith argues that his trial and appellate counsel rendered ineffective assistance and that his waiver of indictment was improperly obtained.[18]

         II. LEGAL STANDARD

         A 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).

         III. DISCUSSION

         Smith's 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.[19] 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 therefore frivolous.

         Smith argues that his trial counsel and appellate counsel each rendered ineffective assistance.[20] 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.[21]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 ...


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