Loston v. Cain et al
Filing
19
ORDER AND REASONS denying 17 Motion for Leave to Appeal in forma pauperis. Signed by Judge Sarah S. Vance on 12/5/2018. (jls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DONALD LOSTON
CRIMINAL ACTION
VERSUS
NO. 17-4842
BURL CAIN
SECTION “R” (3)
ORDER AND REASONS
Before the Court is defendant Donald Loston’s motion to allow him to
proceed in forma pauperis on appeal. 1 Because Loston’s arguments lack
good faith, the Court denies the motion.
I.
BACKGROUND
Loston is a state prisoner incarcerated at the Raymond Laborde
Correctional Center in Louisiana. 2 On July 15 and 16, 2013, Loston was tried
before a jury and found guilty of armed robbery. 3 He was sentenced to fifty
years at hard labor without the benefit of probation, parole or suspension of
sentence.4
1
2
3
4
R. Doc. 17.
Id. at 1.
R. Doc. 10 at 1.
Id. at 2.
On June 6, 2017, Loston filed a petition for habeas corpus under 28
U.S.C. § 2254.5 He asserted the following claims: (1) constructive denial of
counsel; (2) appointed counsel had a conflict of interest; (3) ineffective
assistance of counsel for failure to challenge the jury venire; (4) ineffective
assistance of counsel for failure secure an expert witness; (5) ineffective
assistance of counsel for failure to adequately investigate or provide
meaningful adversarial testing; and (6) insufficient evidence supported his
armed robbery conviction. 6 The Court referred the matter to Magistrate
Judge Daniel Knowles, who issued a Report and Recommendation.7
Magistrate Judge Knowles determined that Loston’s claims were meritless
and recommended that the petition be dismissed with prejudice. 8 On August
2, 2018, the Court adopted the Report and Recommendation as its opinion
and dismissed Loston’s petition with prejudice.9 Loston appealed the Court’s
decision on August 31, 2018.10 He now seeks to proceed in forma pauperis
on appeal.11
5
6
7
8
9
10
11
R. Doc. 3.
Id. at 6-12.
R. Doc. 10.
Id. at 39.
R. Doc. 14.
R. Doc. 16.
R. Doc. 17.
2
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
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.
3
Hale, 73 F. App’x 755 (5th Cir. 2003) (citing Denton v. Hernandez, 504 U.S.
25, 31-33 (1992)).
III. DISCUSSION
Loston’s motion to proceed in forma pauperis suggests that he is
unable to pay the fees related to his appeal. The motion and supporting
documentation indicate that Loston’s current inmate balance is $4.52, and
he has no other assets. 12 Loston’s motion must nevertheless be denied
because his appeal is not taken in good faith.
Loston appeals the Court’s dismissal on five grounds: (1) constructive
denial of counsel; (2) appointed counsel had a conflict of interest; (3)
ineffective assistance of counsel in that counsel had failed to challenge the
jury venire on equal protection grounds; (4) ineffective assistance of counsel
in that counsel failed to retain an expert witness or subject the prosecution’s
case to meaningful adversarial investigation, (5) the state failed to meet its
burden of proof in his armed robbery conviction. 13 All of these grounds for
appeal merely reiterate claims that Loston presented in his original petition,
which the Court dismissed as meritless. 14 These claims lack an arguable
12
13
14
R. Doc. 17 at 2.
R. Doc. 16 at 5-12.
R. Doc. 14.
4
basis in either law or fact, as explained in the Court’s order adopting the
Magistrate Judge’s Report and Recommendation. 15
They are therefore
frivolous and not in good faith.
To the extent that Loston’s third ground for appeal differs from the
third ground of his original petition for habeas corpus, because he has now
alleged an equal protection violation, the claim is frivolous. Petitioners
cannot raise issues for the first time on appeal to the Fifth Circuit unless
failure to consider them would result in manifest injustice. See Lawson v.
Moore, No. 95-60090, 1995 WL 450114, at *1 (5th Cir. Jun. 30, 1995)
(quoting Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991)). Refusal
to consider this new claim will not result in manifest injustice because Loston
does not allege any facts indicating that the jury venire was discriminatory
or that his right to equal protection was violated. 16 Moreover, because
Loston does not specify which race was under-represented, nor provide any
information about the racial makeup of the jury venire as compared to the
racial makeup of the community, his equal protection claim has no arguable
basis in fact, and is thus meritless. 17
15
16
17
See id.
R. Doc. 16 at 9-10.
Id.
5
IV.
CONCLUSION
For the foregoing reasons, petitioner’s motion for leave to appeal in
forma pauperis is DENIED.
5th
New Orleans, Louisiana, this _____ day of December, 2018.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
6
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