Gallo v. Florida Department of Corrections

Filing 9

ORDER on Motion to Proceed in Forma Pauperis on Appeal, denying 7 Motion. Signed by Judge Beth Bloom on 7/19/2021. See attached document for full details. (hh)

Case 0:21-cv-60846-BB Document 9 Entered on FLSD Docket 07/19/2021 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-60846-BLOOM
JONATHAN GALLO,
Petitioner,
v.
FLORIDA DEPARTMENT
OF CORRECTIONS,
Respondent.
/
ORDER ON MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
THIS CAUSE is before the Court upon a pro se Petitioner Jonathan Gallo’s (“Petitioner”)
Motion to Proceed In Forma Pauperis on Appeal, ECF No. [8] (“Motion”). The Court has
reviewed the Motion, the record in this case, the applicable law, and is otherwise fully advised.
For the reasons set forth below, the Motion is denied.
On April 21, 2021, the Court dismissed Petitioner’s Amended Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody, ECF No. [1] (“Petition”), for lack
of jurisdiction as an unauthorized successive § 2254 petition. ECF No. [3]; see Rules Governing
§ 2254 Cases, Rule 9 (“Before presenting a second or successive petition, the petitioner must
obtain an order from the appropriate court of appeals authorizing the district court to consider the
petition as required by 28 U.S.C. § 2244(b)(3) and (4).”).
Petitioner now seeks to appeal the Court’s Order of Dismissal, ECF No. [3], and proceed
in forma pauperis on appeal. “An 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

Case 0:21-cv-60846-BB Document 9 Entered on FLSD Docket 07/19/2021 Page 2 of 2
Case No. 20-cv-60846-BLOOM
objective standard.” Ghee v. Retailers Nat’l Bank, 271 F. App’x 858, 859 (11th Cir. 2008) (per
curiam). An appeal filed in forma pauperis is frivolous if “it appears that the [litigant] has little to
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) (per
curiam) (alterations added).
Here, the Petition was indeed successive and without authorization from the Eleventh
Circuit. ECF No. [3] at 1 (citing Gallo v. Jones, No. 15-cv-62684-JAL, ECF No. [19] (S.D. Fla.
Dec. 21, 2015) (adopting Report and Recommendation that the petition be dismissed as time barred
and determining that a certificate of appealability shall not issue)). Further, Petitioner has not stated
what issues he intends to present on appeal as required by Federal Rule of Appellate Procedure
24(a)(1)(C). It is therefore clear that this appeal has little or no chance of success. As such, the
Court must therefore certify that the Motion is not taken in good faith.
Accordingly, it is ORDERED AND ADJUDGED that Petitioner’s Motion, ECF No. [7],
is DENIED without prejudice.
DONE AND ORDERED in Chambers at Miami, Florida, on July 19, 2021.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record
Jonathan Gallo, Pro Se
#L78566
Calhoun Correctional Institution
Inmate Mail/Parcels
19562 SE Institution Drive
Blounstown, FL 32424
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