Ross v. Vannoy et al

Filing 18

ORDER & REASON denying 17 Motion for Leave to Appeal in forma pauperis. Signed by Judge Sarah S. Vance on 10/26/2016. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JAMES DAVID ROSS

CIVIL ACTION

VERSUS

NO. 16-2568

DARRELL VANNOY

SECTION “R” (1)

ORDER AND REASONS
Petitioner James David Ross moves the Court to permit him to proceed
in forma pauperis on appeal.1 Because Ross failed to state the specific issues
he intends to raise on appeal and his arguments lack good faith, the Court
DENIES petitioner’s motion.
I.

BACKGROUND
Ross is currently incarcerated at the Louisiana State Penitentiary in

Angola, Louisiana. On August 25, 2010, Ross was convicted of simple
robbery, possession of stolen property, and attempted false personation of a
peace officer under Louisiana law. 2 On November 5, 2010, he was found to
be a fourth offender and sentenced to a concurrent term of life imprisonment

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R. Doc. 17.
R. Doc. 12 at 1.

with benefit of probation, parole, or suspension of sentence.3 On April 14,
2016, Ross filed a petition for writ of habeas corpus.4 Magistrate Judge Sally
Shushan, having determined that petitioner was not entitled to an
evidentiary hearing, recommended that Ross’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 Ross a certificate of
appealability. 7

Ross now moves to proceed with his appeal in forma

pauperis.
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

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4
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6
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Id.
R. Doc. 3.
R. Doc. 12.
R. Doc. 14.
Id.
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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)).
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
Ross’s motion to proceed in forma pauperis indicates that his current
inmate account balance is $4.98 and that he has no other assets. 8 Ross’s
motion to proceed in forma pauperis suggests his inability to pay fees related
to his appeal. Nevertheless, his motion must be denied because he has not

8

R. Doc. 17.
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indicated the issues he intends to pursue on appeal as required by Federal
Rule of Appellate Procedure 24(a)(1)(C) and 28 U.S.C. § 1915(a)(1). 9 Without
such specification, Ross’s in forma pauperis motion must be denied. See
McQueen v. Evans, No. 95–50474, 1995 WL 17797616, at *2 (5th Cir. Oct.11,
1995) (per curiam) (failure to present issue for appeal in an in forma
pauperis motion constitutes abandonment of that issue); see also McKinsey
v. Cain, No. 09–7729, 2011 WL 2945812, at *1 (E.D. La. July 15, 2011)
(denying in forma pauperis motion that failed to specify the issues to be
raised on appeal).
Moreover, assuming that Ross intends to raise on appeal all of the
arguments in his petition, such an appeal is frivolous. An appeal may not be
taken in forma pauperis if it is not in good faith. Ross’s appeal does not have
an arguable basis either in law or in fact and is therefore frivolous. Ross
argues in his petition that his counsel was ineffective, but as the Magistrate
Judge correctly pointed out in her Report and Recommendation, Ross failed
to introduce any evidence supporting his claims.10 Additionally, petitioner’s
argument that he is entitled to an evidentiary hearing to obtain the evidence
to support his claims clearly lacks merit. See, e.g., Cullen v. Pinholster, 563

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R. Doc. 16; R. Doc. 17.
R. Doc. 12 at 11-14.
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U.S. 170 (2011). Because Ross’s claims do not have an arguable basis in law
or in fact, his appeal is frivolous.

IV.

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

forma pauperis is DENIED.

26th
New Orleans, Louisiana, this _____ day of October, 2016.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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