Damond v. Cain et al

Filing 18

ORDER AND REASONS denying 14 Motion for Leave to Appeal in forma pauperis. Signed by Judge Sarah S. Vance on 10/28/16. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERNEST DAMOND

CIVIL ACTION

VERSUS

NO. 15-6454

N. BURL CAIN

SECTION “R” (3)

ORDER AND REASONS
Before the Court is petitioner Ernest Damond’s motion to proceed in
forma pauperis on appeal.1 Because Damond’s arguments lack good faith,
the Court DENIES the motion.

I.

BACKGROUND
Damond is a state prisoner who is presently incarcerated at the

Louisiana State Penitentiary in Angola, Louisiana. On January 23, 1997,
Damond was convicted of three counts of armed robbery under Louisiana
law. 2 On May 2, 1997, he was found to be a second offender and was
sentenced as such on each count to a concurrent term of sixty-five years
imprisonment without benefit of parole, probation, or suspension of

1
2

R. Doc. 14.
R. Doc. 9.

sentence.3 On December 3, 2015, Damond filed a petition for writ of habeas
corpus.4 Magistrate Judge Knowles, having determined that an evidentiary
hearing was unnecessary, recommended that Damond’s petition for habeas
corpus be denied and dismissed with prejudice.5 This Court approved the
Magistrate Judge’s Report and Recommendation and adopted it as its
opinion on September 16, 2016.6 In addition, the Court denied Damond a
certificate of appealability. 7
Damond now moves to proceed with his appeal in forma pauperis.
Damond wishes to appeal this Court’s rejection of his argument that his
sentence violates the rule set forth in Miller v. Alabama, 132 S. Ct. 2455
(2012), made retroactive by Montgomery v. Louisiana, 136 S. Ct. 718
(2016).8 Damond’s motion to proceed in forma pauperis indicates that his
current inmate account balance is $263.78 and that his average monthly
deposits for the preceding six months is $71.39.9 Damond’s motion also

3
4
5
6
7
8
9

Id.
R. Doc. 1.
R. Doc. 9.
R. Doc. 11.
Id.
R. Doc. 15.
R. Doc. 14.
2

states that the average monthly balance for the last six months is $29.40.10
Damond reports no other accounts or sources of income. 11

II.

LEGAL STANDARD
A claimant may proceed with an appeal in forma pauperis if he meets

three requirements.

First, the claimant must submit “an affidavit that

includes a statement . . . that [he] is unable to pay such fees or give security
therefor.” 28 U.S.C. § 1915(a)(1). The district court must determine whether
the costs of appeal would cause an undue financial hardship. See Prows v.
Kastner, 842 F.2d 138, 140 (5th Cir. 1998). Second, the claimant must
provide the court with an affidavit that “states the issues that the party
intends to present on appeal.” Fed. R. App. P. 24(a)(1)(C); accord 28 U.S.C.
§ 1915(a)(1) (“Such affidavit shall state the nature of the . . . appeal and
affiant’s belief that the person is entitled to redress.”). Third, the claimant’s
appeal must be “taken in good faith.” 28 U.S.C. § 1915(a)(3); 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. 1983) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962)).

10
11

Id.
Id.
3

Good faith “does not require that probable success be shown,” but rather “is
limited to whether the appeal involves legal points arguable on their merits
(and therefore not frivolous).” United States v. Arroyo-Jurado, 477 F. App’x
150, 151 (5th Cir. 2012). “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).

III. DISCUSSION
Though Damond sufficiently indicates his inability to pay legal fees and
states the issues he intends to present on appeal, the Court nonetheless
concludes that Damond’s motion to proceed in forma pauperis is without
merit. The Court denies the motion for lack of good faith.
As the Magistrate Judge correctly found in his Report and
Recommendation adopted by this Court, Miller is inapplicable to Damond.
See United States v. Walton, 537 Fed. App’x 430, 437 (5th Cir. 2013). Miller
prohibited mandatory life without parole for juvenile offenders. 132 S. Ct. at
2464. Though Damond was a juvenile when he was sentenced, his sentence
was neither mandatory nor was it a sentence of life without parole.
Additionally, Damond’s argument that his punishment is nonetheless
excessive under the Eighth Amendment is clearly foreclosed by precedent.
See United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997) (citing
4

Rummel v. Estelle, 445 U.S. 263, 274-276 (1980)). Because Damond’s claims
do not have an arguable basis in law or in fact, his appeal is lacks good faith.

IV.

CONCLUSION
For the foregoing reasons, Damond’s motion for leave to appeal in

forma pauperis is DENIED.

28th
New Orleans, Louisiana, this _____ day of October.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

5