Veal v. Keith

Filing 27

ORDER AND REASONS denying 24 Motion for Leave to Appeal in forma pauperis. Signed by Chief Judge Sarah S. Vance on 6/12/15. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES VEAL

CRIMINAL ACTION

VERSUS

NO: 14-762

TIM KEITH, WARDEN

SECTION: R

ORDER AND REASONS
Petitioner James Veal moves the Court to permit him to proceed
in forma pauperis on appeal.1

Because Veal's appeal is not taken

in good faith, the Court DENIES the motion.

I.

BACKGROUND
Veal is incarcerated at the Winn Correctional Facility in

Winnfield, Louisiana.

On August 28, 2013, Veal filed a petition

for writ of habeas corpus.2

In his petition, Veal asserts two

ineffective assistance of counsel claims: (1) trial counsel was
ineffective by allowing Veal to take the stand; and (2) trial
counsel was ineffective by failing to raise an entrapment defense.3
Magistrate Judge Joseph Wilkinson determined that an evidentiary
hearing was unnecessary, and recommended that Veal's petition be
denied

and

dismissed

1

R. Doc. 24.

2

R. Doc. 1.

3

Id. at

4

R. Doc. 15.

with

prejudice.4

More

specifically,

Magistrate Judge Wilkinson found that Veal's trial counsel did not
provide deficient performance by permitting Veal to take the stand,
as both counsel and the trial judge admonished Veal that if he
decided to testify, the prosecution could impeach him with his
prior drug convictions.5

Magistrate Judge Wilkinson also found

that Veal's counsel did not provide ineffective assistance by
failing

to

pursue

an

entrapment

defense,

as

"there

was

no

reasonable probability that entrapment was a viable defense" given
Veal's criminal record and Veal's own testimony demonstrating "his
willingness to assist drug purchasers in his neighborhood."6
On December 19, 2014, the Court approved the Magistrate
Judge's Report and Recommendation and adopted it as its opinion.7
The Court also denied a certificate of appealability finding that
no reasonable jurist could debate the propriety of the Court's
order dismissing Veal's petition.8
Veal now moves the Court to proceed with his appeal in forma
pauperis.9

5

Id. at 17 ("Veal has not shown that counsel acted
unreasonably when it was Veal himself who voluntarily took the
stand against [counsel's] advice.").
6

Id. at 20 (emphasis in original).

7

R. Doc. 19.

8

Id. at 2.

9

R. Doc. 24.
2

II.

STANDARD
A

plaintiff may proceed with an appeal in forma pauperis when

he “submits an affidavit that includes a statement . . . that [he]
is unable to pay such fees or give security therefor.”
§ 1915(a)(1).

28 U.S.C.

A district court has discretion in deciding whether

to grant or deny a request to proceed in forma pauperis.

See Prows

v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988); Williams v. Estelle,
681 F.2d 946, 947 (5th Cir. 1982). 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. 1:08-CV–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)).

The

court must also determine whether the appeal is taken in good
faith. 28 U.S.C. § 1915(3).

"'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. 1983) (quoting Coppedge v.
U.S., 369 U.S. 438, 445 (1962)).

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III. DISCUSSION
Veal's motion to proceed in forma pauperis indicates that he
does not have any money in his drawing account or savings account.
Veal also indicates that he has no other assets.10
Although Veal's motion to proceed in forma pauperis suggests
his inability to pay fees related to his appeal, the Court denies
his motion because his appeal is not taken in good faith.

As

stated in the Court's order adopting Magistrate Judge Wilkinson's
Report and Recommendation, Veal has failed to make a substantial
showing of the denial of a constitutional right.

Indeed, upon

review of the record, the Court finds that Veal's ineffective
assistance of counsel claims lack any arguable basis in law or
fact.

Accordingly, the Court denies as frivolous Veal's motion to

proceed in forma pauperis.

Kingery v. Hale, 73 F. App'x 755, 755

(5th Cir. 2003) ("A complaint is frivolous if it lacks an arguable
basis either in law or in fact.").

IV.

CONCLUSION
For the foregoing reasons, the Court DENIES Veal's motion for

leave to appeal in forma pauperis.

10

R. Doc. 24.
4

New Orleans, Louisiana, this 12th day of June, 2015.
__

_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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