Opinion
Cause No. 1:00cr34.
September 28, 2005
OPINION AND ORDER
This matter is before the court on a motion to appeal in forma pauperis. For the following reasons, the motion will be denied.
Discussion
On April 22, 2004, this court entered an order denying petitioner Richard Owens' ("Owens") motion for relief pursuant to 28 U.S.C. § 2255. On June 6, 2005, this court denied Owens' motion to reconsider. On August 10, 2005, Owens filed Notice of Appeal and Application for Certificate of Appealability. On August 16, 2005, this court denied Owens' Application for Certificate of Appealability.
In his § 2255 motion, Owens claimed ineffective assistance of counsel, violation of the Fourth, Fifth and Sixth Amendments, improper grand jury selection, invalid criminal statute, false testimony by the government, and disparity of sentence compared to co-defendants. In his motion for reconsideration, Owens again claimed that he was denied effective assistance of counsel, that the government used false testimony and that his right to a speedy trial was violated.
In his motion for Certificate of Appealability, Owens claimed that the indictment in his criminal case was improperly constructively amended and varied from the elements proven at trial.
Leave to proceed in forma pauperis should not be granted where the trial court certifies that "it is not taken in good faith". 28 U.S.C. 1915(a) (1994). In this case, further appeal on the grounds asserted by petitioner would be frivolous. As noted in this court's order denying Certificate of Appealability, the majority of Owens' claims center on his allegation that he was deprived of effective assistance of counsel. However, the record is clear that Owens' counsel followed acceptable strategy throughout this case. While Owens, after being found guilty and sentenced to prison, continues to think of ways in which his trial could possibly have been better, Owens has failed to make any showing that his counsel performed deficiently or that he was deprived of a fair trial. Likewise, Owens has failed to show that his appellate counsel was ineffective. Rather, Owens has merely shown that he disagrees with some of the issues his appellate counsel chose to present on appeal. As discussed in the order denying Owens' § 2255 petition, it is sound strategy for appellate counsel to present only the strongest arguments on appeal, and to not litter the appellate process with a huge array of hopeless claims. As the motions underlying the appeal are totally meritless and frivolous and not taken in good faith, this court hereby DENIES Owens' motion to appeal in forma pauperis.