Gilbert v. United States

• Court: District Court, N.D. Texas
• Decided: March 15, 2023
• Docket: 3:17-cv-01751
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

RANDOLPH EDWARD GILBERT, § #49143-177 § Movant, § § N o. 3:17-cv-01751-K v. § No. 3:15-cr-00062-K-2 § UNITED STATES of AMERICA, § Respondent. §

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 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. 2 Il. 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 15", 2023. DY i heade BVnbende UNITED STATES DISTRICT JUDGE