Gilbert v. USA

Filing 15

MEMORANDUM OPINION AND ORDER - The Court finds Gilbert's appeal is not taken in good faith and DENIES his motion for leave to proceed in forma pauperis on appeal. Gilbert may challenge this finding by filing a separate motion to proceed in f orma pauperis on appeal with the Clerk of Court for the United States Court of Appeals for the Fifth Circuit within 30 days from the date of this order. See Baugh, 117 F.3d at 202; see also Fed. R. App. P. 24(a)(5). (Ordered by Judge Ed Kinkeade on 3/15/2023) (chmb) Modified document type on 3/15/2023 (sxf).

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RANDOLPH EDWARD GILBERT,
#49143-177
Movant,
v.
UNITED STATES of AMERICA,
Respondent.

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No. 3:17-cv-01751-K
No. 3:15-cr-00062-K-2

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Movant Randolph Edward Gilbert’s
motion to proceed in forma pauperis on appeal (doc. 13). For the following
reasons, Gilbert’s motion is denied.
I. BACKGROUND
Gilbert filed a motion to vacate, set-aside, or correct sentence on June 22,
2017. (Doc. 2.) On October 15, 2018, the Court denied the motion, denied
a certificate of appealability (COA), and entered judgment. (Docs. 8-10.) On
February 27, 2023, Gilbert filed a notice of appeal and a motion for leave to
proceed in forma pauperis on appeal. (Docs. 11, 13.)
II. DISCUSSION
To proceed in forma pauperis on appeal, an appellant must show financial
eligibility and a nonfrivolous issue for appeal. Carson v. Polley, 689 F.2d 562, 586
(5th Cir. 1982). Under Federal Rule of Appellate Procedure 24(a)(3)(A), an

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appellant is ineligible for in forma pauperis status if the court certifies that the
appeal is not taken in good faith. “Good faith” means that the issues on appeal
are not frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). When the
underlying claims are “entirely frivolous and had no possibility of success,” the
appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d 197, 201-02 (5th
Cir. 1997). The determination of whether good faith exists “is limited to whether
the appeal involves legal points arguable on the merits (and therefore not
frivolous).” United States v. Moore, 858 F. App’x 172, 172 (5th Cir. 2021) (per
curiam) (quoting Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted)). A district court has discretion in
deciding whether to grant or deny a request to proceed in forma pauperis. Williams
v. Estelle, 681 F.2d 946, 947 (5th Cir. 1982) (per curiam) (citing Green v. Estelle,
649 F.2d 298, 302 (5th Cir. 1981)).
In this case, as discussed, the Court denied a COA on October 15, 2018.
(Doc. 9.) At that time, the Court found reasonable jurists would not find the
Court’s assessment of the constitutional claims was either debatable or wrong.
Id. at 1 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The Court further
found reasonable jurists would not find it debatable whether Gilbert’s § 2255
motion stated a valid claim of the denial of a constitutional right or whether the
Court was correct in its procedural ruling. Id. In sum, Gilbert has failed to
present a nonfrivolous issue for appeal, and his motion must be denied.
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III. CONCLUSION
The Court finds Gilbert’s appeal is not taken in good faith and DENIES
his motion for leave to proceed in forma pauperis on appeal. Gilbert may challenge
this finding by filing a separate motion to proceed in forma pauperis on appeal
with the Clerk of Court for the United States Court of Appeals for the Fifth
Circuit within 30 days from the date of this order. See Baugh, 117 F.3d at 202;
see also Fed. R. App. P. 24(a)(5).
SO ORDERED.
Signed March 15th, 2023.
____________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

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