Vann v. United States of America

Filing 26

ORDER by Circuit Judge Paul Kelly, Jr. denying 25 Motion for Leave to Appeal In Forma Pauperis. (rt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,

v.

No. 12-CR-00966-PJK
No. 16-CV-01204-PJK-KRS

RAYVELL VANN,

Defendant.

ORDER DENYING LEAVE TO PROCEED ON APPEAL
PURSUANT TO 28 U.S.C. § 1915 AND FED. R. APP. P. 24
THIS MATTER comes on for consideration of Defendant Rayvell Vann’s Motion
for Leave to Proceed on Appeal Without Prepayment of Costs or Fees (PLRA Form),
filed December 8, 2017, CR Doc. 295; CV Doc. 25. Upon consideration thereof, the
court finds that Mr. Vann’s appeal is not taken in good faith and therefore his motion to
proceed on appeal in forma pauperis should be denied.
“An appeal may not be taken in forma pauperis if the trial court certifies in writing
that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). Good faith is an objective
standard that is satisfied where a defendant seeks appellate review of any issue that is not
frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). An appeal is taken in
good faith if the appellant identifies “the existence of a reasoned, nonfrivolous argument

on the law and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan,
937 F.2d 502, 505 (10th Cir. 1991).
In his motion, Mr. Vann states that he is requesting a certificate of appealability,
claiming ineffective assistance of counsel because Dr. Brazwell was not subpoenaed as
an expert witness. He contends that this testimony would have demonstrated a faulty
chain of custody, established an inference that Mr. Vann never possessed the PCP, and
would have cast doubt on Agent Small’s testimony. He also maintains that the district
court erred by not having an evidentiary hearing on his claim that counsel precluded him
from testifying. CR Doc. 295 at 2; CV Doc. 25 at 2. The court previously denied a
certificate of appealability. CR Doc. 290 at 4; CV Doc. 20 at 4.
To obtain a certificate of appealability, Mr. Vann “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Rejection of Mr.
Vann’s ineffective assistance of counsel claim is not reasonably debatable because he
cannot demonstrate deficient performance or prejudice. CR Doc. 290 at 2; CV Doc. 20 at
2. Additionally, rejection of Mr. Vann’s deprivation of the right to testify claim is not
reasonably debatable because “Mr. Vann has never articulated what his testimony would
have been; therefore, he cannot demonstrate a reasonable probability that the outcome of
this proceeding would have been different.” CR Doc. 290 at 2; CV Doc. 20 at 2. Mr.
Vann has failed to identify the existence of a reasoned, nonfrivolous argument in support
of his request for a certificate of appealability, and the court therefore denies his motion
to proceed on appeal in forma pauperis.
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The court certifies that Mr. Vann’s appeal is not taken in good faith. Mr. Vann is
advised that he may file a motion for leave to proceed on appeal in forma pauperis with
the United States Court of Appeals for the Tenth Circuit within thirty (30) days after
service of this Order. See Fed. R. App. P. 24(a)(5).
IT IS THEREFORE ORDERED that Mr. Vann’s Motion for Leave to Proceed
on Appeal Without Prepayment of Costs or Fees (PLRA Form) filed December 8, 2017,
CR Doc. 295; CV Doc. 25, is DENIED; the court CERTIFIES that the appeal is not
taken in good faith, and the court DIRECTS the clerk to notify the court of appeals of
this denial and certification.
________________________________
United States Circuit Judge
Sitting by Designation

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