USA v. Adam Martin

Filing 511104717

Case: 09-50315

Document: 00511104717

Page: 1

Date Filed: 05/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50315 S u m m a r y Calendar May 7, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. A D A M EUGENE MARTIN, D e fe n d a n t-A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 1:03-CR-250-1

B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. P E R CURIAM:* A d a m Eugene Martin, federal prisoner # 39706-180, was convicted by a ju r y of eight counts of bank robbery. Martin was sentenced to life imprisonment. T h e district court denied Martin's request for DNA testing. The district court d e n ie d Martin's motion to proceed in forma pauperis (IFP) on appeal and c e r t i fie d that his appeal was not taken in good faith. Martin now moves to p r o c e e d IFP in this court.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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Case: 09-50315

Document: 00511104717 Page: 2 No. 09-50315

Date Filed: 05/07/2010

A prisoner who contests the district court's certification decision must d i r e c t his IFP motion solely to the district court's reasons for the certification d e c is io n . Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court may a u th o r iz e Martin to proceed IFP on appeal if the appeal presents a nonfrivolous is s u e . See 28 U.S.C. § 1915(a)(1); Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir. 1 9 8 8 ). The inquiry into Martin's good faith "is limited to whether the appeal in v o l v e s `legal points arguable on their merits (and therefore not frivolous).'" H o w a r d v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted). S e c tio n 3600 of Title 18 provides individuals under a federal sentence of im p r is o n m e n t with an opportunity to move for post-conviction DNA testing. The c o u r t that entered the defendant's judgment of conviction is to order DNA te s tin g of specified evidence if 10 prerequisites are met. See § 3600(a)(1)-(10). M o s t relevant to this appeal, the applicant is required to identify a theory of d e f e n s e that would establish his "actual innocence," and the applicant must s h o w that "[t]he proposed DNA testing of the specific evidence may produce new m a t e r ia l evidence that would . . . raise a reasonable probability that the a p p lica n t did not commit the offense." § 3600(a)(6), (8). W h e t h e r DNA testing would produce a "reasonable probability" that M a r t in did not commit the robberies, as required under § 3600(a)(8), is a q u e s tio n of law that is reviewed de novo. See United States v. Fasano, 577 F.3d 5 7 2 , 575 (5th Cir. 2009). The district court's "underlying fact findings are r e v ie w e d only for clear error." Id. A s the district court determined, the evidence of Martin's guilt is o v e r w h e lm in g and includes testimony from Martin's co-defendants regarding M a r t in 's participation in the robberies, as well as letters written by Martin that a m o u n t to a confession. Martin makes no attempt to explain how DNA testing w o u ld raise a reasonable probability that he did not commit the bank robbery o ffe n s e s , so as to satisfy the requirements of § 3600(a)(8). Martin has not d e m o n s t r a t e d that he has a nonfrivolous issue for appeal, and the record shows 2

Case: 09-50315

Document: 00511104717 Page: 3 No. 09-50315

Date Filed: 05/07/2010

t h a t he has no grounds for obtaining DNA testing. Accordingly, Martin's IFP m o tio n is denied, and his appeal is dismissed as frivolous. 5TH CIR. R. 42.2; see B a u g h , 117 F.3d at 202; Howard, 707 F.2d at 219-20. I F P MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS.

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