Two Hearts v. United States of America

Filing 8

OPINION AND ORDER granting 7 Motion for Leave to Proceed in forma pauperis on appeal. No certificate of appealability will issue. Signed by Chief Judge Roberto A. Lange on 2/6/2024. Mailed to Plaintiff (DJP)

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA CENTRAL DIVISION CHAD TWO HEARTS, 3:23-CV-03027-RAL Plaintiff/Petitioner, OPINION AND ORDER GRANTING PETITIONER'S MOTION FOR LEAVE TO vs. PROCEED IN FORMA PAUPERIS ON UNITED STATES OF AMERICA, APPEAL Defendant/Respondent. Petitioner Chad Two Hearts commenced this action challenging his 2013 conviction and sentence for aggravated sexual abuse of a child. Doc. 1; United States v. Two Hearts. 3:12-CR30108-RAL,Doc. ICQ. It is not clear to this Court whether Two Hearts is challenging hisjudgment of conviction under Federal Rule of Civil Procedure 60(b), seeking relief from this Court's February 22, 2017, opinion and order denying his initial § 2255 motion, or seeking relief in a second or successive motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. Thus, this Court issued an opinion and order considering each of Two Hearts's potential grounds for relief. Doc. 3. This Court dismissed Two Hearts's Rule 60(b) motion with prejudice and denied his successive or second motion for relief under § 2255 without prejudice to him obtairdng an order ofauthorization from Eighth Circuit Court ofAppeals pursuant to 28 U.S.C. § 2244(b)(3). Id.. Two Hearts has filed a notice of appeal from this Court's Judgment of Dismissal and Opinion and Order Dismissing Action. Doc. 4. Two Hearts moves for leave to proceed in forma pauperis on appeal. Doc. 7. I. Motion for Leave to Proceed in forma Pauperis on Appeal The Eighth Circuit historically has looked to district courts to rule on in forma pauperis motions for appeal and has held that the filing-fee provisions ofthe PLRA do not apply to habeas corpus actions. Malave v. Hedrick. 271 F.3d 1139, 1140 (8th Cir. 2001) (per curiam). To determine whether a habeas petitioner qualifies for in forma pauperis status, the court need only assess(1)whether the petitioner can afford to pay the full filing fee, and(2)whether the petitioner's appeal is taken in "good faith." 28 U.S.C. § 1915(a)(1),(3). Two Hearts filed a prisoner trust account report along with his motion for leave to proceed in forma pauperis on appeal. Doc. 7 at 3. Based on that prisoner trust account report, the Court finds that Two Hearts is indigent and cannot afford to pay the appellate filing fee. Two Hearts's motion for leave to proceed in forma pauperis on appeal. Doc. 7, is granted. II. Certificate of Appealabillty When Two Hearts filed his notice of appeal, he did not file a motion for a certificate of appealability, but he may not appeal the dismissal of a § 2255 motion unless a certificate of appealability issues. Miller-El v. Cockrelh 537 U.S. 322, 335-36 (2003). See also 28 U.S.C. § 2253(c)(1)(B) ("Unless a circuit judge or district judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a proceeding under section 2255."). A certificate may be issued "only ifthe applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A "substantial showing" demonstrates 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). This Court did not consider the merits of Two Hearts's § 2255 motion because Two Hearts had not obtained authorization from the Eighth Circuit to file a second or successive petition pursuant to 28 U.S.C. § 2244(b)(3). This Court finds that at this stage Two Hearts has not made a substantial showing that his constitutional rights were denied, so no certificate of appealability will issue. 28 U.S.C. § 2253(c)(2). Accordingly, it is ORDERED that Two Hearts's motion for leave to proceed in forma pauperis on appeal. Doc. 7, is granted. It is further ORDERED that no certificate of appealability will issue. DATED this 6'^ day of February, 2024. BY THE COURT: ROBERTO A. LANGE CHIEF JUDGE

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