United States v. Whitlow

Full title: UNITED STATES OF AMERICA, Plaintiff, v. THOMAS WHITLOW, Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

Date published: Jul 22, 2019

4:14-CR-3015 (D. Neb. Jul. 22, 2019)

Opinion

4:14-CR-3015

07-22-2019

UNITED STATES OF AMERICA, Plaintiff, v. THOMAS WHITLOW, Defendant.

John M. Gerrard Chief United States District Judge

ORDER

This matter is before the Court on the defendant's notice of appeal (filing 392). Because the defendant was previously found to be eligible for appointment of counsel, he would normally be allowed to proceed on appeal in forma pauperis without further authorization. Fed. R. App. P. 24(a)(3). But an appeal may not be taken in forma pauperis if the trial court certifies in writing that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A).

An appellant demonstrates good faith by seeking appellate review of any issue that is not frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962); Ellis v. United States, 356 U.S. 674, 674 (1958). An indigent appellant should be allowed to proceed in forma pauperis unless the issues raised are so frivolous that the appeal would be dismissed in the case of a non-indigent litigant. Coppedge, 369 U.S. at 447; Ellis, 356 U.S. at 675. An appeal is frivolous where none of the legal points are arguable on their merits—when the result is obvious or the appellant's argument is wholly without merit. See, Neitzke v. Williams, 490 U.S. 319, 325 (1989); Misischia v. St. John's Mercy Health Sys., 457 F.3d 800, 806 (8th Cir. 2006).

The basis for the order being appealed (filing 388) was that the defendant's motion was a "second or successive" 28 U.S.C. § 2255 motion, requiring authorization from the Court of Appeals the defendant has not obtained. There is no reasonable basis to dispute that conclusion: the defendant's motion is expressly brought pursuant to § 2255, see filing 387, and this is at least his second such motion, see filing 388. Any argument to the contrary is frivolous.

Accordingly, the Court finds that the defendant's appeal is not taken in good faith, and that he is not entitled to proceed in forma pauperis.

IT IS ORDERED:

1. The defendant's appeal is not taken in good faith, and he is not entitled to proceed in forma pauperis on appeal.

2. The Clerk of the Court is directed to forward a copy of this order to the Eighth Circuit Court of Appeals.

Dated this 22nd day of July, 2019.

BY THE COURT:

/s/_________

John M. Gerrard

Chief United States District Judge