Roberts v. USA

Filing 78

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE on Motion re: 75 Motion for Leave to Proceed in forma pauperis. The Court should grant Movant Travis Roberts's unopposed motion for leave to proceed in forma pauperis on appeal. (Ordered by Magistrate Judge David L. Horan on 11/27/2018) (epm)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
TRAVIS ROBERTS
(BOP Register No. 49518-177),
Movant,
V.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:16-cv-3407-L-BN

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Movant Travis Roberts, through court-appointed counsel, has filed an unopposed
motion to proceed in forma pauperis (“IFP”) as to his appeal of the October 30, 2018
judgment dismissing his motion under 28 U.S.C. § 2255. See Dkt. No. 75. United States
District Judge Sam A. Lindsay referred the IFP motion to the undersigned United
States magistrate judge for hearing, if necessary, and for the undersigned to submit
proposed findings and recommendations for the disposition of the motion. See Dkt. No.
76. The undersigned now enters these findings of fact, conclusions of law, and
recommendation that the Court should grant the IFP motion.
Legal Standards and Analysis
Because, in appointing him counsel in this action, the Court previously
determined that Mr. Roberts is indigent, see Dkt. No. 10; see also Dkt. No. 12 (financial
aff.), he “may proceed on appeal in forma pauperis without further authorization
unless” (A) the Court – in writing and explaining why – either “certifies that the appeal

is not taken in good faith” or “finds that the party is not otherwise entitled to proceed
in forma pauperis” or (B) “a statute provides otherwise.” FED. R. APP. P. 24(a)(3).
And, typically, “[a] movant who seeks authorization to proceed IFP on appeal
must demonstrate that he is a pauper and that his appeal involves nonfrivolous
issues.” Amir-Sharif v. Dallas Cty. Tex., 269 F. App’x 525, 526 (5th Cir. 2008) (per
curiam) (citing Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982); emphasis added);
see also McGarrah v. Alford, 783 F.3d 584, 584 (5th Cir. 2015) (per curiam) (“By failing
to provide argument that addresses the basis of the district court’s dismissal,
McGarrah has failed to adequately present any argument for this court’s consideration.
He has thus failed to establish that he will raise a nonfrivolous issue for appeal.”);
accord Clark v. Oklahoma, 468 F.3d 711, 713, 715 (10th Cir. 2006); see also McCoy v.
Harmon, 738 F. App’x 326, 327 (5th Cir. 2018) (per curiam) (“[G]eneral conclusional
assertions” – that lack “facts that would entitle [him] to relief on his [dismissed] claim”
– do not satisfy the requirement that a movant “address the district court’s reason for
dismissal.” (citation omitted)).
But, here, because the Court previously appointed Mr. Roberts counsel under
18 U.S.C. § 3006A and Rule 8(c) of the Rules Governing Section 2255 Proceedings for
the United States District Courts, see Dkt. No. 10, he may proceed on appeal “without
prepayment of fees and costs or security therefor and without filing the affidavit
required by [28 U.S.C. §] 1915(a),” 18 U.S.C. § 3006A(d)(7). And, at the least, Mr.
Roberts’s detailed objections to the findings, conclusions, and recommendation as to the
disposition of his Section 2255 motion, see Dkt. No. 65, demonstrate that his appeal
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involves nonfrivolous issues.
He has therefore carried his burden as to the IFP motion.
Recommendation
The Court should grant Movant Travis Roberts’s unopposed motion for leave to
proceed in forma pauperis on appeal [Dkt. No. 75].
A copy of these findings, conclusions, and recommendation shall be served on all
parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections within
14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b).
In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: November 27, 2018

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DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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