Restricted Filer - Alcocer-Roa v. United States

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-20298 SEITZ CASE NO. 15-CR-20709 UNGARO (SEITZ) MICHAEL JOHN ALCOCER-ROA,

Movant,

v.

UNITED STATES OF AMERICA,

Respondent. / ORDER CLARIFYING [DE-113] AND DENYING MOVANT’S APPLICATION TO PROCEED IN FORMA PAUPERIS

THIS MATTER is before the Court on Movant’s Application to Proceed in Forma Pauperis (“IFP”) (DE 110 in 20-cv-202980) following the Court’s Final Order (DE 100) denying his § 2255 Motion and Order (DE 109) denying his Motion for Reconsideration. The Court considered Movant’s filing, the record and the applicable law and previously entered a paperless Order summarily denying the application. (DE 113). For the reasons discussed below, the Court’s prior Order is clarified and the Movant’s IFP Application is denied for the reasons discussed. First, if Movant is seeking IFP status before this Court, no filing fee is required. See Rule 3 Governing Section 2255 Proceedings for the United States District Courts, as noted by the advisory committee’s note to the 1976 adoption of the Rule. Therefore, any request for IFP status before this Court is DENIED. Second, if Movant is seeking IFP status on appeal, such a determination is governed by 1 Fed. R. App. P. 24 and 28 U.S.C. § 1915, which require a showing before the trial court that “good faith” exists to proceed IFP on appeal. See Fed. R. App. P. 24(a)(2); see also 28 U.S.C. § 1915(a)(3). “Good faith” is demonstrated when a movant seeks appellate review of any non- frivolous issues. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). However, an IFP action is frivolous if it is without arguable merit in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). Where a claim is arguable, but “ultimately will be unsuccessful,” the claim should survive a frivolity review. See Cofield v. Ala. Pub. Serv. Comm'n, 936 F.2d 512, 515 (11th Cir. 1991). In this case, Movant has not identified any non-frivolous grounds for appeal of the Court’s Final Order (DE 100) denying his § 2255 Motion and Order (DE 109) denying his Motion for Reconsideration, much less that the appeals of these Orders will ultimately prove successful. See Weeks v. Jones, 100 F.3d 124, 127 (11th Cir. 1996); Clark v. State of Ga. Pardons and Paroles Bd., 915 F.2d 636, 639 (11th Cir. 1990) (lawsuit is frivolous if the chances of ultimate success are slight). Therefore, the application seeking IFP status on appeal is also DENIED. Denial of this IFP application, however, does not preclude the Movant from filing another application to proceed IFP on appeal. However, he is cautioned that the application must be filed directly with the Court of Appeals, within thirty days of the district court’s order of denial, pursuant to Fed. R. App. P. 24(a)(5). DONE AND ORDERED in Miami, Florida, this 23rd day of February, 2021. Cheersna. dei PATRICIA A. SEITZ United States Senior District Judge

cc: Michael John Alcocer-Roa, Pro Se Reg. No. 63126-018 Miami FCI - Miami Camp / Unit - J Federal Correctional Institution Inmate Mail/Parcels Post Office Box 779800 Miami, FL 33177

Aimee C. Jimenez, AUSA United States Attorney's Office 99 NE 4 Street Miami, FL 33132 Email: aimee.jimenez@usdoj.gov