Weston v. Cain et al

Filing 19

ORDER & REASONS denying 17 Motion for Leave to Appeal in forma pauperis. Signed by Chief Judge Sarah S. Vance on 5/13/2011. (rll, ) Modified on 5/13/2011 to edit doc type (rll, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WAYNE DOUGLAS WESTON

CIVIL ACTION

VERSUS

NO: 10-334

BURL CAIN, WARDEN

SECTION: R(6)
ORDER AND REASONS

Before the Court is petitioner Wayne Weston’s motion to
appeal in forma pauperis.

For the following reasons, Weston’s

motion is DENIED.
I.

Background
Weston is a state prisoner incarcerated at the Louisiana

State Penitentiary, Angola, Louisiana.
court of attempted manslaughter.

He was convicted in state

Weston was sentenced as a

third-felony offender to a term of life imprisonment at hard
labor without benefit of parole, probation or suspension of
sentence.
After unsuccessfully proceeding through the state appeal and
post-conviction process, Weston filed a habeas corpus petition
asserting a number of claims.

Specifically, Weston argued: (1)

the prosecutor made improper statements to the jury; (2) the
State failed to prove intent; (3) he received ineffective
assistance of counsel; (4) the prosecutor failed to maintain
files in violation of state law; and (5) the Assistant District
Attorney had a conflict of interest and, therefore, should not

have represented the State in an evidentiary hearing.

The

Magistrate Judge recommended that all of Weston’s claims be
denied on the merits.1

This Court adopted the Report and

Recommendation and declined to issue a certificate of
appealability.2

Weston now moves to proceed with his appeal in

forma pauperis.
II.

Legal Standard
A plaintiff may proceed in an appeal in forma pauperis when

he “submits an affidavit that includes a statement of all assets
[he] possesses [and] that [he] is unable to pay such fees or give
security therefor.”

28 U.S.C. § 1915(a)(1).

A court may dismiss

the case at any time if it determines that the allegation of
poverty is untrue, that the appeal is frivolous or malicious,
that the appeal fails to state a claim on which relief may be
granted, or that the appeal seeks monetary relief against a
defendant who is immune from such relief.

Id. § 1915(e).

A

district court has discretion in deciding whether to grant or
deny a request to proceed in forma pauperis.

Williams v.

Estelle, 681 F.2d 946, 947 (5th Cir. 1982) (per curiam); see also
Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988) (“A district
court has discretion, subject to review for abuse, to order a
person to pay partial filing fees where the financial data
1

R. Doc. 12.

2

R. Doc. 14.
2

suggests that the person may do so without suffering undue
financial hardship.”).

The district court must inquire as to

whether the costs of appeal would cause an undue financial
hardship.

Prows, 842 F.2d at 140; see also Walker v. Univ. of

Tex. Med. Branch, No. 08-417, 2008 WL 4873733, at *1 (E.D. Tex.
Oct. 30, 2008) (“The term ‘undue financial hardship’ is not
defined and, therefore, is a flexible concept.

However, a

pragmatic rule of thumb contemplates that undue financial
hardship results when prepayment of fees or costs would result in
the applicant’s inability to pay for the ‘necessities of life.’”)
(quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331,
339 (1948)).
III. Discussion
Weston’s motion to proceed in forma pauperis indicates that
he had an average monthly balance of $144.33 for the six months
prior to the motion’s filing.3
incomplete.

Weston’s motion, however, is

In his application, Weston states that in the past

twelve months he has received money from “other sources,” but
fails to describe the source of the money, the amount received
and the amount he will continue to receive as required by the
form.4

Additionally, Weston states that he has cash, checking or

savings accounts, but fails to state the total amount he has in

3

R. Doc. 17 at 2.

4

Id. at 1-2.
3

cash or in these accounts.5

Weston’s failure to complete the

form is grounds to deny his motion.

See In re Stoller, 328 F.

App’x 623, 624 (Fed. Cir. 2008) (denying in forma pauperis motion
when petitioner failed to disclose income, employment, expenses
and cash available for petitioner and his spouse); Flippin v.
Coburn, 107 F. App’x 520, 521 (6th Cir. 2004) (“Because
[petitioner] failed to provide information about his expenses,
the district court was unable to determine whether he was
indigent, and therefore, it properly denied his motion to proceed
in forma pauperis.”); Armstrong v. San Antonio Hous. Auth., No.
03-1128, 2004 WL 2397577, at *1-2 (W.D. Tex. Sept. 24, 2004)
(denying plaintiff’s application to proceed in forma pauperis on
appeal because, among other reasons, plaintiff failed to list his
monthly income and assets with specificity).

Because Weston has

not completed the application in its entirety, he has failed to
meet his burden of establishing his entitlement to proceed in
forma pauperis.
In addition, the Court finds that Weston has failed to state
a nonfrivolous grounds for appeal.

An appeal may not be taken in

forma pauperis if it is not in good faith.

28 U.S.C. §

1915(a)(3); see also Fed. R. App. P. 24(a)(4)(B).

“‘Good faith’

is demonstrated when a party seeks appellate review of any issue
‘not frivolous.’” Howard v. King, 707 F.2d 215, 220 (5th Cir.
5

Id. at 2.
4

1983) (quoting Coppedge v. United States, 369 U.S. 438, 445
(1962)).

A determination of an IFP movant’s good faith, while

necessitating a brief inquiry into the merits, is limited to
whether the appeal involves legal points arguable on their
merits.

United States v. Misher, 401 F. App’x 981, 981 (5th Cir.

2010) (quoting Howard, 707 F.2d at 220).

“A complaint is

frivolous if it lacks an arguable basis either in law or in
fact.”

Kingery v. Hale, 73 F. App’x 755, 755 (5th Cir. 2003)

(citing Denton v. Hernandez, 504 U.S. 25, 31-33 (1992)).
Weston’s arguments for appeal regarding self-defense and the
State’s failure to prove intent do not have an arguable basis in
either law or in fact.

As stated in the Report and

Recommendation adopted by the Court, the Louisiana First Circuit
found that petitioner’s conviction resulted from the jury’s
determination as to the credibility of the witnesses:
Clearly, the revelation of the plot to pay the victim
and provide Shantell and Perry Babin with money in
exchange for their testimony destroyed the credibility
of the defense witnesses. Moreover, [petitioner’s]
contention that he used the knife in self-defense was
contrary to the initial statements he made to the
police officers that there was no knife involved.6
Weston’s guilty verdict indicates that the jurors accepted the
testimony of the State’s witnesses and rejected the testimony of
the defense witnesses.

The Louisiana First Circuit, therefore,

held that a rational trier of fact could have concluded that

6

R. Doc. 12 at 16.
5

petitioner did not act in self-defense and that the State proved
the offense of attempted manslaughter beyond a reasonable doubt.
The First Circuit’s reasoning was not an unreasonable application
of the law enunciated in Jackson v. Virginia, 443 U.S. 307
(1979), to the facts of this case.
In addition, Weston’s claims of prosecutorial misconduct do
not have an arguable basis in law or in fact.

The challenged

statements made by the prosecutor were not improper because they
were merely conclusions or inferences the prosecutor wished the
jury to draw from the evidence.

See United States v. Munoz, 150

F.3d 401, 414 (5th Cir. 1998) (stating that a prosecutor is not
prohibited from providing jurors with conclusions or inferences
he wishes the jury to draw from the evidence as long as those
conclusions and inferences are grounded upon evidence).

Further,

the remarks were neither repeated nor pronounced, and there was
no reasonable probability that in their absence, the result would
have been different.

See Harris v. Cockrell, 313 F.3d 238, 245

(5th Cir. 2002) (“[P]rosecutorial remarks are a sufficient ground
for habeas relief ... only if the prosecutor’s remarks evince
either persistent and pronounced misconduct or the evidence was
so insubstantial that (in probability) but for the remarks no
conviction would have occurred.”).
Weston’s claims of ineffective assistance of counsel do not
have an arguable basis in law or in fact.

6

Weston asserts that he

was denied effective assistance of counsel when: (i) his attorney
did not request a mistrial based on prosecutorial misconduct;
(ii) his attorney did not request a jury instruction on
justification; and (iii) his attorney did not investigate and
secure the testimony of an eyewitness.

But, Weston has failed to

show that counsel’s performance was deficient or that the alleged
deficient performance caused him prejudice.

See Strickland v.

Washington, 466 U.S. 668, 687 (1984) (performance and prejudice
test).

Because, as discussed above, the prosecutor’s comments

were not objectionable, counsel was not ineffective for failing
to object or failing to request a mistrial.

Additionally,

because the trial court provided the jurors with a justification
instruction, Weston’s claim that his counsel was ineffective for
not requesting such an instruction is clearly without merit.
Finally, petitioner’s claim that counsel was ineffective for
failing to investigate and secure the testimony of an eyewitness
has no arguable basis in law or fact.

It is not reasonably

probable that testimony repetitive of testimony elicited at trial
would have altered the outcome of the trial.
Petitioner’s next grounds for appeal is that claims denied
on procedural grounds were not remanded for a hearing on the
merits.

The Court, however, did not deny any of Weston’s

arguments on procedural grounds.

The Report and Recommendation

states that because the petition was timely and petitioner had

7

exhausted his state court remedies, the Court would address the
merits of petitioner’s claims.
For the reasons stated in the Report and Recommendation
adopted by the Court, the Court did not issue a certificate of
appealability.

Specifically, the Court found that after

reviewing each of Weston’s claims on the merits, Weston had not
made a substantial showing of the denial of a constitutional
right and the issues would not engender debate among reasonable
jurists.
Based on the foregoing, the Court finds that Weston’s
assertions do not have an arguable basis in law or in fact, and
his appeal is therefore frivolous.
IV.

CONCLUSION
Accordingly, Weston’s motion for leave to appeal in forma

pauperis is DENIED.

13th

New Orleans, Louisiana, this

day of May, 2011.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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