Butler v. Vannoy et al
ORDER AND REASONS denying 19 Motion for Leave to Appeal in forma pauperis. Signed by Judge Sarah S. Vance on 11/6/2017. (cg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SECTION “R” (5)
Petitioner Jody Butler moves the Court to permit him to proceed in
forma pauperis on appeal.1 Because Butler’s arguments lack good faith, the
Court denies the motion.
Butler is a prisoner at the Louisiana State Penitentiary.2
February 11, 2011, he was sentenced to life imprisonment as a habitual
offender after a jury found him guilty of marijuana possession and cocaine
possession.3 The Louisiana Court of Appeal for the Fourth Circuit initially
reversed Butler’s conviction on Fourth Amendment grounds, but his
conviction was ultimately upheld by the Louisiana Supreme Court. State v.
Butler, 117 So. 3d 87 (La. 2013). On September 19, 2017, the Court dismissed
R. Doc. 19.
R. Doc. 3.
Id. at 1; R. Doc. 13 at 1-2.
Butler’s petition for habeas corpus and denied a certificate of appealability. 4
Butler now moves to appeal in forma pauperis. 5
A claimant may proceed with an appeal in forma pauperis if he meets
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). Based on this information, 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)). Good faith “does not require that probable
success be shown,” but rather “is limited to whether the appeal involves legal
R. Doc. 15.
R. Doc. 19.
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).
Butler’s motion to proceed in forma pauperis indicates that his current
inmate account balance is $102.32 and that he has no other assets. 6
Although Butler’s motion suggests his inability to pay fees related to his
appeal, his motion must be denied because the arguments he intends to raise
on appeal do not have an arguable basis either in law or in fact and are
therefore frivolous. In his notice of appeal, Butler argues that his rights to
due process and equal protection were violated because the state court
abandoned a well-established rule of law in the course of reviewing his
conviction. 7 As explained in the Court’s order dismissing Butler’s petition,
habeas relief is not available based on alleged violations of state law, and
Butler’s Fourth Amendment challenge is barred by the Supreme Court’s
decision in Stone v. Powell, 428 U.S. 465, 481 (1976).
R. Doc. 19 at 6.
R. Doc. 17.
For the foregoing reasons, Butler’s motion for leave to appeal in forma
pauperis is DENIED.
New Orleans, Louisiana, this _____ day of November, 2017.
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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