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United States v. Douglas

United States District Court, M.D. Louisiana

March 26, 2018

UNITED STATES OF AMERICA
v.
BILLY DOUGLAS

          RULING

          JUDGE SHELLY D. DICK UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

         This matter is before the Court on the Defendant's Memorandum in Support of Reinstatement of 28 U.S.C. 2255 Motion to Vacate, [1] Notice of Appeal, [2] Motion for Extension of Time to Satisfy the Court filing fees for Notice of Appeal, [3] and Motion for Leave to Proceed In Forma Pauperis.[4]

         The Defendant has previously filed a number of Section 2255 motions in this Court. Most recently, on June 9, 2014, Defendant filed a Motion to Vacate, [5] which the Court transferred to the Fifth Circuit as Defendant had failed to get permission to file a successive Section 2255 motion.[6] The Fifth Circuit denied Defendant authorization to file a successive Section 2255 motion.[7] Nevertheless, Defendant filed yet another Section 2255 motion on July 21, 2016, [8] which the Court denied without prejudice to Defendant obtaining authorization from the Fifth Circuit to file this successive Section 2255 motion.[9]Following this Ruling, Defendant has filed a Memorandum in Support of Reinstatement of 28 U.S.C. 2255 Motion to Vacate, [10] Notice of Appeal, [11] Motion for Extension of Time to Satisfy the Court filing fees for Notice of Appeal, [12] and Motion for Leave to Proceed In Forma Pauperis.[13]

         These motions shall be denied for the following reasons. The Fifth Circuit has previously denied this Defendant's motions to vacate, certificate of appealability, and motion to proceed in forma pauperis.[14] Defendant filed the most recent Section 2255 motion again without obtaining authorization from the Fifth Circuit.

         To the extent that the Defendant's Notice of Appeal may be characterized as a request for a certificate of appealability, 28 U.S.C. § 2253(c) provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a proceeding under section 2255.” Under this statute, in order to obtain a certificate of appealability, the Defendant must make a substantial showing of the denial of a federal right.[15] In addition, he must also show that the issues presented are debatable among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are sufficient to warrant encouragement to proceed further.[16] Upon a review of this matter, the Court finds that the Defendant has not made the requisite substantial showing of the denial of a federal right. Moreover, the Court does not find that the issues in this case are likely to be debatable among jurists of reason such that a court could resolve this matter differently. Thus, the Defendant's ostensible request for a Certificate of Appealability shall be denied.

         Further, the Defendant seeks leave to proceed in forma pauperis in connection with his appeal. However, as noted, 28 U.S.C. § 2253(c) provides that “an appeal may not be taken” in the absence of the granting by the Court of a certificate of appealability. In light of the denial by this Court of the Defendant's ostensible request for a certificate of appealability, the motion to appeal in forma pauperis must also be denied.

         Finally, and in the alternative, because the Court finds that the Defendant has not demonstrated a non-frivolous issue for appeal, the Court concludes that the appeal is not taken in good faith and that the Defendant is therefore not authorized to proceed in forma pauperis in connection therewith.[17] Accordingly, IT IS ORDERED that the Defendant's Notice of Appeal, [18] to the extent that it may be interpreted as a request for a certificate of appealability, is hereby DENIED. Defendant's Motion for Extension of Time to Satisfy the Court filing fees for Notice of Appeal, [19] and Motion for Leave to Proceed In Forma Pauperis[20] are likewise DENIED as moot for the reasons set forth above. Defendant's Memorandum in Support of Reinstatement of 28 U.S.C. 2255 Motion to Vacate, [21] which the Court will interpret as a motion for leave to file this supplemental brief, is DENIED.

         Defendant is cautioned that the Court will not consider any Section 2255 motions filed in this Court without the Defendant first obtaining authorization from the Fifth Circuit to file a successive Section 2255 motion.

         IT IS SO ORDERED.

         Signed in Baton Rouge, Louisiana on March 26, 2018.

---------

Notes:

[1] Rec. Doc. No. 172.

[2] Rec. Doc. No. 173.


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