Francis v. Goodwin et al

Filing 27

ORDER AND REASONS denying 25 Motion for Leave to Appeal in forma pauperis. Signed by Judge Sarah S. Vance on 6/20/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KENNETH FRANCIS

CIVIL ACTION

VERSUS

NO. 16-12067

JERRY GOODWIN, WARDEN

SECTION “R” (3)

ORDER AND REASONS
Petitioner Kenneth Francis moves the Court to permit him to proceed
in forma pauperis on appeal.1 Because Francis’s arguments lack good faith,
the Court DENIES petitioner’s motion.

I.

BACKGROUND
Francis is a state prisoner currently incarcerated at David Wade

Correctional Center in Homer, Louisiana.2 In 1989, Francis was found guilty
by a jury and sentenced to 35 years for armed robbery, 30 years for
aggravated battery, and 35 years for attempted first degree murder, with all
sentences to be served concurrently.3 The State of Louisiana filed a “multiple
bill” under Louisiana’s Habitual Offender Law.4

1
2
3
4

R. Doc. 25.
R. Doc. 1 at 1.
R. Doc. 1-1 at 2.
R. Doc. 14 at 3.

The trial court found

Francis to be a multiple offender and sentenced him to 33 years, to be served
without benefit of parole, probation or suspension of sentence.5
On April 6, 2016, Francis filed a petition for a writ of habeas corpus.6
Francis presented this petition as a challenge to the execution of his sentence
under 28 U.S.C. § 2241 because he was denied “good time” credit.7 Under
La. Stat. Ann. § 15:571.3(C)(1), an inmate sentenced as a habitual offender is
not eligible for good time. The Court found that Francis’s challenge to the
execution of his sentence is predicated on a challenge to the validity of his
underlying habitual offender sentence and thus must be brought under 28
U.S.C. § 2254 instead of § 2241.8
The Court construed the application as a § 2254 petition and referred
the matter to Magistrate Judge Daniel E. Knowles for a Report and
Recommendation.9 Magistrate Judge Knowles determined that the petition
is a second or successive petition and that Francis had not obtained
authorization from the United States Court of Appeals for the Fifth Circuit as
required by § 2244(b)(3).10 Magistrate Judge Knowles thus recommended

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6
7
8
9
10

Id.
R. Doc. 1.
R. Doc. 1 at 2.
R. Doc. 18 at 3-4.
Id. at 5.
R. Doc. 19 at 2.
2

that the petition be dismissed without prejudice for lack of subject matter
jurisdiction.11 On May 11, 2017, the Court approved the Magistrate Judge’s
Report and Recommendation and adopted it as its opinion.12 Francis filed a
notice of appeal13 and now moves to proceed with his appeal in forma
pauperis.14

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). 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

11
12
13
14

Id. at 3.
R. Doc. 20.
R. Doc. 24.
R. Doc. 25.
3

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
Francis’ motion to proceed in forma pauperis suggests that he is
unable to pay fees related to his appeal. The motion and supporting
documentation indicates that Francis’s current inmate account balance is
$0.00 and that he has no other assets.15
Francis’s motion must nevertheless 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, Francis does not

15

R. Doc. 25 at 6-7.
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challenge the Magistrate Judge’s determination that his petition is second or
successive.16 He argues instead that his petition was improperly construed
as a § 2254 petition.
Francis contends that his petition for habeas corpus relief should be
considered under 28 U.S.C. § 2241 rather than § 2254 because he challenges
the denial of good time and alleges that the Department of Corrections is
arbitrarily denying him good time credits.17 Disputes as to good time are
properly brought under § 2241 if they challenge the “manner in which a
sentence is carried out or the prison authorities’ determination of its
duration.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000); see also Gibbs
v. Cain, No. 12-3004, 2013 WL 3490909, at *2 (E.D. La. July 10, 2013) (claim
that the Department of Public Safety and Corrections exceeded its authority
in denying good time should be brought under § 2241).
Yet Francis is ineligible for good time credit because of his habitual
offender sentence, not the manner in which his sentence is being carried out
by the Department of Corrections. See La. Stat. Ann. § 15:571.3(C)(1). As the
Court previously determined, Francis’s challenge to the validity of his
habitual offender sentence must be brought under § 2254.18

16
17
18

R. Doc. 24.
Id. at 2-4.
R. Doc. 18.
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Because

Francis’s petition is second or successive, it cannot be considered on the
merits unless Francis first obtains authorization from the Fifth Circuit.

IV.

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

forma pauperis is denied.

20th
New Orleans, Louisiana, this _____ day of June, 2017.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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