EVERETT v. GEORGIA STATE OF et al

Filing 12

ORDER denying 10 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/18/2017 (lap)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RON C EVERETT,
Petitioner,
VS.
STATE OF GEORGIA, et al.,

Respondent.
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NO. 5:17-cv-00116-CAR-CHW

ORDER
Petitioner Ron C Everett has filed a motion for leave to proceed in forma pauperis
on appeal (ECF No. 10) from the Court’s May 5, 2017, Order (ECF No. 5) dismissing his
habeas application as second or successive. Applications to appeal in forma pauperis are
governed by 28 U.S.C. § 1915 and Fed. R. App. P. 24. 28 U.S.C. § 1915 provides:
(a)(1) [A]ny court of the United States may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or criminal,
or appeal therein, without prepayment of fees or security therefore, by a
person who submits an affidavit that includes a statement of all assets such
prisoner possesses that the person is unable to pay such fees or give
security therefor. Such affidavit shall state the nature of the action, defense
or appeal and affiant’s belief that the person is entitled to redress.
...
(3) An appeal may not be taken in forma pauperis if the trial court certifies
in writing that it is not taken in good faith.
Similarly Fed. R. App. P. 24(a) provides:
(1) [A] party to a district-court action who desires to appeal in forma
pauperis must file a motion in the district court. The party must attach an
affidavit that:
(A) shows . . . the party’s inability to pay or to give security for fees

and

costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.

(2) If the district court denies the motion, it must state its reasons in writing.
Thus, the Court must make two determinations when faced with an application to
proceed in forma pauperis. First, it must determine whether the petitioner is financially
able to pay the filing fee required for an appeal. Petitioner’s application and certified
trust fund account in this case indicates that he is unable to pay the $505 appellate filing
fee.
Next, the Court must determine if the petitioner has satisfied the good faith
requirement. “‘[G]ood faith’ . . . must be judged by an objective standard.” Coppedge v.
United States, 369 U.S. 438, 445 (1962). The petitioner demonstrates good faith when he
seeks review of a non-frivolous issue. Id.; Morris v. Ross, 664 F.2d 1032, 1033 (11th
Cir. 1981). An issue “is frivolous if it is ‘without arguable merit either in law or fact.’”
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002). “Arguable means being capable
of being convincingly argued.” Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991)
(quotation marks and citations omitted); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir.
1993) (“[A] case is frivolous . . . when it appears the plaintiff ‘has little or no chance of
success.’”) (citations omitted). “In deciding whether an [in forma pauperis] appeal is
frivolous, a district court determines whether there is ‘a factual and legal basis, of
constitutional dimension, for the asserted wrong, however inartfully pleaded.’” Sun, 939
F.2d at 925 (citations omitted).
Upon reviewing Petitioner’s motion and the record, the Court finds that Petitioner

has no arguable basis for an appeal. Petitioner argues that the evidence at his trial was
not sufficient to prove his guilt beyond a reasonable doubt. As discussed in the order of
dismissal, however, Petitioner previously filed a habeas action which was dismissed as
untimely. Accordingly, Petitioner must receive authorization from the Eleventh Circuit
Court of Appeals prior to filing a second or successive habeas petition. There is no
suggestion that Petitioner has received authorization and without prior authorization this
Court lacks jurisdiction to consider his second or successive petition.

The appeal,

therefore, is not brought in good faith as there are no issues with arguable merit.
Consequently, Petitioner’s application to appeal in forma pauperis (ECF No. 10) is
DENIED.
SO ORDERED, this 18th day of August, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT