Opinion
Case No. 20-CV-60653-LENARD/LOUIS
11-04-2020
EDWARD EASTON, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER
THIS CAUSE is before the Court on Plaintiff Edward Easton's Motion seeking permission to file in Forma Pauperis (ECF No. 16). This Motion was referred to the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636 and the Magistrate Judge Rules of the Local Rules of the Southern District of Florida, by the Honorable Joan A. Lenard, United States District Judge (ECF No. 18).
Plaintiff seeks to appeal in forma pauperis the Court's denial of his petition for writ of error coram nobis (ECF No. 10). "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). "A party demonstrates good faith by seeking appellate review of any issue that is not frivolous when examined under an objective standard. Ghee v. Retailers Nat. Bank, 271 F. App'x 858, 859-60 (11th Cir. 2008) (citing Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed. 2d 21 (1962). "An issue is frivolous when it appears that 'the legal theories are indisputably meritless.'" Id. (citing Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993)).
As explained in the denial of Plaintiff's petition (ECF No. 10), a writ of error coram nobis is not an available remedy to a petitioner who is still "in custody," which includes supervised release. See United States v. Dean, 749 F. App'x 873, 874 (11th Cir. 2018) (finding that because the defendant was still serving his term of supervised release, he was still "in custody" within the meaning of Section 2255, and coram nobis relief was unavailable to him as a matter of law). Here, Plaintiff is currently under supervised release. This not only makes his sought-after relief unavailable to him, but also renders his appeal frivolous. See United States v. Adley, 783 F. App'x 914, 916 (11th Cir. 2019) (finding an appeal of a court's denial of a petition for writ of error coram nobis to be frivolous because petitioner was still in custody).
Because Plaintiff's appeal of the denial of his petition for writ of error coram nobis is frivolous, and thus not made in good faith, Plaintiff is not entitled to appeal in forma pauperis. See Carr v. United States, No. CR 1:07-00334-CG-N, 2019 WL 1590953, at *3 (S.D. Ala. Mar. 15, 2019), report and recommendation adopted, No. CR 07-00334-CG-N, 2019 WL 1586760 (S.D. Ala. Apr. 12, 2019) (finding that because "clear precedent bars the sole claim for coram nobis relief raised . . . any appeal by Carr of the denial would be without merit and therefore not taken in good faith, thus denying him entitlement to appeal in forma pauperis."). However, Plaintiff may still file a motion to proceed on appeal in forma pauperis with the Eleventh Circuit Court of Appeals pursuant to Federal Rule of Appellate Procedure 24(a)(5). See Carr 2019 WL 1590953, at *3 n.5.
DONE AND ORDERED in Chambers in Miami, Florida, this 4th day of November, 2020.
/s/ _________
LAUREN F. LOUIS
UNITED STATES MAGISTRATE JUDGE