Opinion
Case No. 3:17-cv-116-KRG-KAP
02-12-2020
ROBERTO BERAS, Petitioner, v. S.M. KUTA, WARDEN, MOSHANNON VALLEY CORRECTIONAL CENTER, Respondent
Report and Recommendation
Recommendation
Petitioner Roberto Beras has filed a motion for leave to appeal in forma pauperis, ECF no. 17, that was referred to me under 28 U.S.C.§ 636(b)(3). I recommend that the motion be denied.
Report
Petitioner filed a petition for a writ of habeas corpus, asserting that the Supreme Court's decision in Honeycutt v. United States, 137 S.Ct. 1626 (2017), invalidated the sentence imposed on him in the United States District Court for the Southern District of New York. The Court accepted my recommendation that the petition be denied. Petitioner seeks leave to appeal without paying the filing fee.
First, it is doubtful that petitioner is indigent. Even based on the information provided by the petitioner he has more than enough to pay the filing fee without depleting his prison account, and he receives enough money from outside sources that if he refrains from his average commissary spending for approximately two months he will have saved enough to pay for the filing fee.
Second and of more general application, 28 U.S.C.§ 1915(a)(3) provides that an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. This does not require an extensive discussion. See e.g. Howard v. Garvin, 844 F. Supp. 173, 176 (S.D.N.Y.1994). A useful framework for the required analysis is offered in Darden v. McMackin, 761 F. Supp. 52, 54 (N.D. Ohio 1991): A party demonstrates "good faith" when seeking review of any issue which is not frivolous. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Furthermore, a determination of good faith requires: an inquiry into the merits of the appeal, but does not require that probable success be demonstrated. The Court's inquiry is limited to whether the appeal involves 'legal points arguable on their merits (and therefore not frivolous).' Jones v. Frank, 622 F.Supp. 1119 (W.D.Tex.1985) (citing Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 reh'g denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967); Howard v. King, 707 F.2d 215 (5th Cir.1983)). (Emphasis added.) An appeal of this case would not involve legal points arguable on their merits. In other words, an appeal is taken in good faith when "rational arguments on the law and facts can be made," challenging the trial court's judgment. Miranda v. United States, 458 F.2d 1179, 1181 (2d Cir.), cert. denied, 409 U.S. 874 (1972). Doubts about the substantiality of the issues presented should normally be resolved in the applicant's favor. Id., citing Lee v. Habib, 137 U.S.App.D.C. 403, 424 F.2d 891 (1970).
No rational argument can be made that petitioner's challenge is one cognizable in a petition under 28 U.S.C.§ 2241, or that Honeycutt has been held to apply retroactively by the Supreme Court. On the latter point, see United States v. Potts, 2018 WL 5296376, at *3 (E.D.Pa. Oct. 25, 2018), aff'd on other grounds, 765 Fed.Appx. 638 (3d Cir.), cert. denied, 140 S.Ct. 239 (2019). Petitioner may subjectively believe that his arguments have merit but the standard is an objective one. Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. DATE: February 12, 2020
/s/_________
Keith A. Pesto,
United States Magistrate Judge Notice to counsel of record by ECF and by U.S. Mail to:
Roberto Beras, Reg. No. 45865-054
Moshannon Valley Correctional Center
P.O. Box 2000
Philipsburg, PA 16866-0798