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United States v. Allen

United States District Court, E.D. Louisiana

March 14, 2019

UNITED STATES OF AMERICA
v.
SONNY ALLEN

         SECTION “R” (1)

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE

         Before the Court is defendant Sonny Allen's motion to proceed in forma pauperis on appeal.[1] Because his appeal has no basis and is not in good faith, the Court denies the motion.

         I. BACKGROUND

         Allen is a federal prisoner incarcerated at the Oakdale Federal Correctional Institution in Oakdale, Louisiana.[2] Allen was tried by a jury and convicted of conspiracy to distribute and possess cocaine.[3] He was sentenced to imprisonment for 240 months.[4]

         Allen appealed the judgment to the Fifth Circuit, which affirmed the jury verdict and Allen's sentence on September 1, 2016.[5] On November 5, 2018, Allen filed a notice of appeal, stating that he was appealing the Court's denial of an appeal motion dated February 6, 2016.[6] No. such order, dated February 6, 2016, exists in the record.

         II. DISCUSSION

         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 Fed.Appx. 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 Fed.Appx. 755 (5th Cir. 2003) (citing Denton v. Hernandez, 504 U.S. 25, 31-33 (1992)).

         Allen's motion to proceed in forma pauperis suggests that he is unable to pay the fees related to an appeal. The motion and supporting documentation indicate that his current inmate balance is $36.04, and he has no other assets.[7] But Allen does not state the basis for his appeal as required by the Federal Rules of Appellate Procedure. In addition, his appeal is not in good faith, because Allen seeks to appeal a ruling that does not exist. Allen's description of the order he seeks to appeal does not match any of the Court's orders in this case. The appeal therefore has no basis in law or fact, and his motion to proceed in forma pauperis must be denied.

         III. CONCLUSION

         For the foregoing reasons, petitioner's motion for leave to appeal in forma pauperis is DENIED.

---------

Notes:

[1] R. Doc. 536.


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