Jones v. Vannoy et al

Filing 20

ORDER AND REASONS denying 16 Motion for Leave to Appeal in forma pauperis. Before the court is Roy Jones's motion to allow him to proceed in forma pauperis on appeal. Because Jones did not indicate which issues he intends to pursue on appeal, the Court denies the motion. Signed by Judge Sarah S. Vance on 9/14/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROY JONES

CIVIL ACTION

VERSUS

NO. 17-5038

DARREL VANNOY

SECTION “R” (4)

ORDER AND REASONS
Before the court is Roy Jones’s motion to allow him to proceed in
forma pauperis on appeal.1 Because Jones did not indicate which issues he
intends to pursue on appeal, the Court denies the motion.

I.

BACKGROUND
Jones is a state prisoner currently incarcerated at the Louisiana State

Penitentiary in Angola, Louisiana. 2 In 1995, Jones was found guilty by a jury
for aggravated rape and sentenced to life in prison without the possibility of
parole, probation, or suspension of sentence. 3 On May 18, 2017, Jones filed
a petition for a writ of habeas corpus in federal court in which he asserted
that his counsel was ineffective on multiple grounds, that he is entitled to

1
2
3

R. Doc. 16.
R. Doc. 1 at 2.
Id.; R. Doc. 11 at 1-2.

DNA testing, and that he is actually and factually innocent.4 The Court
referred the matter to Magistrate Judge Karen Wells Roby, who issued a
Report and Recommendation.5 Magistrate Judge Roby determined that the
petition was time-barred and recommended that the petition be dismissed
with prejudice.6 On July 13, 2018, the Court approved the Magistrate Judge’s
Report and Recommendation and adopted its opinion. 7 Jones filed a notice
of appeal 8 and now moves to proceed with his appeal in forma pauperis.9

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

4
5
6
7
8
9

R. Doc. 1 at 16-19; see also R. Doc. 11 at 6.
R. Doc. 11.
Id. at 17.
R. Doc. 13.
R. Doc. 15.
R. Doc. 16.
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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 Fed. 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 Fed. App’x 755, 755 (5th Cir. 2003) (citing Denton v. Hernandez,
504 U.S. 25, 31-33 (1992)).

III. DISCUSSION
Jones’s motion to proceed in forma pauperis suggests that he is unable
to pay fees related to his appeal. The motion and supporting documentation

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indicate that Jones’s current inmate balance is $35.67 and that he has no
other assets. 10
Jones’s motion must nevertheless be denied because Jones has not
indicated to the court which issues he intends to pursue on appeal. 11 A
litigant who wishes to proceed in forma pauperis in the Court of Appeals is
required to provide the district 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). Without a statement of the issues he intends
to pursue on appeal, the Court cannot determine whether his appeal is taken
in good faith. See, e.g., Reeder v. U.S., No. 07-45, 2012 WL 965997, at *2
(E.D. La. Mar. 21, 2012); Smith v. School Bd. of Brevard Cty, No. 09-2033,
2010 WL 2026071, at *1 (M.D. Fla. May 20, 2010); United States v. One
2000 Land Rover, No. 07–382, 2008 WL 4809440, at *2 (S.D. Ala. Oct. 24,
2008). A litigant who fails to present arguments for appeal is considered to
have abandoned those arguments. McQueen v. Evans, 1995 WL 17797616,
at *2 (5th Cir. Oct. 11, 1995) (citing Van Cleave v. United States, 854 F.2d 82,
84-85 (5th Cir. 1988)). Jones has failed to comply with the requirements for

10
11

R. Doc. 19 at 6.
See R. Doc. 15.
4

a motion to proceed in forma pauperis and the Court thus deems him to have
abandoned those arguments.

IV.

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

forma pauperis is DENIED.

New Orleans, Louisiana, this _____ day of September, 2018.
14th
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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