Wilmore v. United States of America

Filing 54

ORDER denying 53 Motion for Leave to Appeal in forma pauperis. Signed by Judge Robert N. Scola, Jr on 5/17/2018. (vmz) .

United States District Court
for the
Southern District of Florida
Hervé Wilmore, Movant,
v.
United States of America,
Respondent.

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Civil Action No. 17-60278-Civ-Scola
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Order Denying Motion to Appeal in forma pauperis
Hervé Wilmore asks this Court to allow him to proceed on appeal in
forma pauperis. (Motion for Leave to Appeal in forma pauperis, ECF No. 53.)
The Court denies this request because (1) the motion does not satisfy the
requirements of 28 U.S.C. § 1915, and (2) Wilmore’s appeal is not taken in
good faith.
First, 28 U.S.C. § 1915 provides that a prisoner seeking to appeal in
forma pauperis (IFP), in addition to filing an affidavit, must attach “a certified
copy of the trust fund account statement (or institutional equivalent) for the
prisoner for the 6-month period immediately preceding the filing of the . . .
notice of appeal . . . .” 28 U.S.C. § 1915(a)(2) (emphasis added). Although
Wilmore has attached a printout of his prison account statement, it does not
appear to be a certified copy.
Second, “[a]n appeal may not be taken in forma pauperis if the trial court
certifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). “A
party demonstrates good faith by seeking appellate review of any issue that is
not frivolous when examined under an objective standard.” Ghee v. Retailers
Nat’l Bank, 271 F. App’x 858, 859 (11th Cir. 2008). An appeal filed IFP is
frivolous “when it appears the plaintiff has little or no chance of success,”
meaning that the “factual allegations are clearly baseless or that the legal
theories are indisputably meritless.” Carroll v. Gross, 984 F.2d 392, 393 (11th
Cir. 1993) (internal quotation marks omitted). As the Magistrate Judge’s Report
(ECF No. 42) makes clear, Wilmore’s contention that his trial and appellate
counsel were ineffective for failing to raise a constructive amendment argument
is without merit, and his attempt to amend his motion to assert an additional
constructive amendment claim is procedurally barred. In addition, Wilmore
also attempts to improperly assert a new issue on appeal—that the underlying
judgment is void. (See Mot., ECF No. 53); see also Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has repeatedly
held that an issue not raised in the district court and raised for the first time in

an appeal will not be considered by this court.”) (internal quotations and
citations omitted).
Moreover, the Court already decided not to issue a certificate of
appealability (see ECF No. 45), which means that Wilmore was not able to show
that reasonable jurists would find the Court’s substantive or procedural ruling
debatable. See Slack v. McDaniel, 529 U.S. 473, 478 (2000). Since Wilmore’s
claims lack merit or are procedurally barred, and since a reasonable jurist
would not disagree with these conclusions, it is clear that Wilmore’s appeal has
little or no chance of success. The Court must therefore certify that this appeal
is not taken in good faith.
Done and ordered at Miami, Florida, on May 17, 2018.
_______________________________
Robert N. Scola, Jr.
United States District Judge