United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
Marcus Brumfield moves the Court to permit him to proceed
in forma pauperis on appeal. Because Brumfield's
arguments lack good faith, the Court denies the motion.
November 25, 2015, Brumfield pleaded guilty to Count One of
the Superseding Indictment, possession with the intent to
distribute 28 grams or more of cocaine base, Count Two, being
a felon in possession of a firearm, and Count Three,
possessing a firearm in furtherance of a drug trafficking
crime. In a plea agreement, Brumfield waived his
rights to appeal or collaterally challenge his sentence,
except for his right to bring a direct appeal of a sentence
in excess of the statutory maximum and his right to raise a
claim of ineffective assistance of counsel. The Court
sentenced Brumfield to 264 months imprisonment, reflecting
204 months on each of the first two counts, to be served
concurrently, and 60 months on the third count, to be served
November 18, 2016, Brumfield filed a motion to vacate, set
aside, or correct his sentence under 28 U.S.C. §
2255. On October 5, 2017, the Court denied
Brumfield's motion, and denied a certificate of
appealability.Brumfield now moves for leave to proceed
in forma pauperis on appeal.
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 suggests that he is unable to pay fees related to his
appeal. His supporting documentation indicates that
Brumfield's current inmate balance is
$50.78. Brumfield'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.
motion identifies three issues for appeal. First, Brumfield
appears to contend that the Court abused its discretion and
violated his right to due process by denying his § 2255
motion. But Brumfield does not explain the basis
of this argument. For the reasons explained in the
Court's order denying relief, Brumfield's motion was
without arguable merit.Second, Brumfield wishes to raise the
issue of whether Mathis v. United States, 136 S.Ct.
2243 (2016) and United States v. Hinkle, 832 F.3d
569 (5th Cir. 2016), constitute grounds for collateral attack
and equitable tolling.But these cases are not relevant. The
Court denied Brumfield's challenge to his career offender
sentencing enhancement because he waived the right to
collaterally challenge his sentence in his plea agreement,
not because his claim was time-barred. A valid
waiver of appeal rights is not voided by a subsequent change
in caselaw. See United States v. Burns, 433 F.3d
442, 448-51 (5th Cir. 2005).
Brumfield requests permission to expand his claims to include
a new claim of ineffective assistance of counsel because of
his attorney's failure to object to the use of his prior
drug felony. The Court has already issued a final
judgment denying Brumfield's motion,  and he points
to no extraordinary circumstances that would warrant the
Fifth Circuit considering this claim for the first time on
appeal. See United States v. Fisch, 851 F.3d 402,
408 (5th Cir. 2017); Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999). Accordingly, an
appeal on this issue would be frivolous. See United
States v. Johnson, 292 F. App'x 352, 353-54 (5th
foregoing reasons, Brumfield's motion to proceed in