Opinion
Case No. 02-10117.
March 7, 2005
ORDER
Now before the court is petitioner's application to proceed in forma pauperis. (Doc. 468); 28 U.S.C. § 1915; 28 U.S.C. § 1746. Petitioner pled guilty on June 19, 2003 to conspiracy to distribute over 500 grams of methamphetamine. 21 U.S.C. § 846. He was sentenced on October 31, 2003 to 168 months imprisonment. Petitioner filed a motion to produce transcripts on January 24, 2005 because he is "working on" a 28 U.S.C. § 2255 or a 28 U.S.C. § 2241 appeal; however, petitioner has yet to file a collateral appeal. He then filed this motion to proceed in forma pauperis and supported his motion with an affidavit of poverty which shows that while the average balance in his prisoner account over the last six months was $1,059.60, it is now a paltry $5.86.
To obtain authorization to proceed in an action in forma pauperis a person must,
submit an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress. 28 U.S.C. § 1915(a)(1).
. . .
An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. 28 U.S.C. § 1915(a)(3).
The court has reviewed petitioner's application and declaration and finds that plaintiff should not be authorized to proceed in forma pauperis. First, petitioner has failed to state the nature of his action. 28 U.S.C. § 1915(a)(1). He has asserted that he may file either a section 2255 or section 2241 motion but has stated no facts or legal theory that would entitle him to relief. Finally, petitioner must show the existence of a nonfrivolous issue that states a claim upon which relief can be granted. McIntosh v. United States Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) (internal quotations and citations omitted); See Coppedge v. United States, 369 U.S. 438, 445 (1962) (Defendant's good faith under 28 U.S.C. § 1915 is demonstrated when he seeks appellate review of any issue not frivolous); 28 U.S.C. § 1915(a)(3).
Even if petitioner had asserted a claim under sections 2255 or 2241, these motions would be frivolous because this Court would be unable to offer him relief. A section 2241 appeal must be filed in the district where the prisoner is confined. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Petitioner resides at the Beaumont Federal Correctional Complex which is located in the Eastern District of Texas; therefore, this Court would be without jurisdiction to consider a section 2241 motion. 28 U.S.C. § 2241; United States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986); http://www.bop.gov/inmate_locator/index.jsp. Similarly, petitioner would be unable to obtain relief under the provisions of 28 U.S.C. § 2255 because more than one year has elapsed since the judgment became final. 28 U.S.C. § 2255. While there are other provisions under this section which permit the one year period of limitation to be calculated differently, petitioner does not argue that those provisions apply; therefore, a section 2255 motion would be time barred. Because of the reasons set forth above, an appeal taken by petitioner would not be in good faith.
IT IS THEREFORE ORDERED that plaintiff's application to proceed in forma pauperis (Doc. 468) be DENIED, and that he may not commence the prosecution of this action without prepayment of fees or security therefor.
SO ORDERED.