LUSTER v. ODDO
ORDER DENYING 13 Motion for Leave to Appeal in forma pauperis. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/11/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
DAVID ANTOINE LUSTER,
Warden L.J. ODDO,
CIVIL ACTION NO. 5:17-CV-201 (MTT)
Petitioner has filed an application to appeal in forma pauperis. (Doc. 13). After
reviewing the record, the Court enters the following Order.
On June 7, 2017, this Court dismissed Petitioner’s petition for writ of habeas
corpus because Petitioner failed to obtain leave from the Eleventh Circuit to file a
second or successive habeas petition. Doc. 8; 28 U.S.C. § 2244(b)(3)(A). Judgment
was entered on June 8, 2017. Doc. 9. He seeks to appeal his judgment.
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 (a)(3) provides that “[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.
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
(A) shows . . . the party’s inability to pay or to give security for fees
(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
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
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 petitioner ‘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).
Although Petitioner has not submitted a statement of the issues he intends to
appeal, as is required under Fed. R. App. P. 24(a)(1)(C), this Court’s independent
review of the record demonstrates that Petitioner’s appeal is frivolous. See Hyche v.
Christensen, 170 F.3d 769, 771 (7th Cir. 1999), overruled on other grounds by Lee v.
Clinton, 209 F.3d 1025 (7th Cir. 2000) (explaining that the arguments to be advanced
on appeal are often obvious and decisions regarding good faith can be made by looking
at the “reasoning of the ruling sought to be appealed” instead of requiring a statement
from the petitioner). Petitioner has filed at least five previous habeas petitions
challenging his 2004 conviction/sentence. Doc. 8 at 3. Petitioner did not obtain leave
from the Eleventh Circuit before he filed the current petition. This Court, therefore, did
not have subject matter jurisdiction to entertain his petition and dismissed the petition
without prejudice. Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). There
are no issues with arguable merit for Petitioner to raise on appeal and the appeal,
therefore, is not taken in good faith.
Consequently, Petitioner’s application to appeal in forma pauperis (Doc. 13) is
SO ORDERED, this 11th day of August, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT
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