Erickson v. United States of America

Filing 25

ORDER granting 20 Motion for Leave to Proceed in forma pauperis on Appeal; Certificate of Appealability issued as to the issue of whether the court erred in dismissing Ericksons non-Johnson claims based on the motion to dismiss. Signed by U.S. District Judge Karen E. Schreier on 7/5/2017. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
ROBERT L. ERICKSON,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

3:16-CV-03015-KES
ORDER GRANTING MOTION
FOR LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL
AND ISSUING CERTIFICATE
OF APPEALABILITY

Movant, Robert L. Erickson, filed a motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. Docket 1. The court appointed the
Federal Public Defenders Office to represent Erickson regarding his claim.
Docket 6. Counsel later moved to dismiss Erickson’s Johnson claims, Docket
16, and the court entered judgment against Erickson. Docket 17. Erickson filed
a notice of appeal, Docket 19, and now moves for leave to proceed in forma
pauperis on appeal. Docket 20.
Under Federal Rules of Appellate Procedure 24, an appellant who has not
received prior approval from the district court to proceed in forma pauperis
must file an affidavit that “(A) shows in the detail prescribed by Form 4 of the
Appendix of Forms the party's inability to pay or to give security for fees and
costs; (B) claims an entitlement to redress; and (C) states the issues that the
party intends to present on appeal.” Erickson’s application demonstrates his
inability to pay or to give security for fees and costs. The court finds that
Erickson is entitled to proceed in forma pauperis on appeal.

The Eighth Circuit Court of Appeals remanded this matter to this court
to rule on the issue of whether a certificate of appealability should be issued
and if granted to specify the issue or issues to be considered on appeal. Docket
23. A certificate may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(2). A
“substantial showing” is one that demonstrates “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). The court finds that
Erickson has made a substantial showing that the court’s dismissal of his nonJohnson claims was debatable or wrong. Consequently, the court issues a
certificate of appealability on this issue.
Thus, it is ORDERED
1. Erickson’s Motion for leave to proceed in forma pauperis on appeal
(Docket 20) is granted
2. A certificate of appealability is issued as to the issue of whether the
court erred in dismissing Erickson’s non-Johnson claims based on the
motion to dismiss.
Dated July 5, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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