Opinion
Criminal Action No. 5:02-111-JMH
03-07-2012
UNITED STATES OF AMERICA, Plaintiff, v. GREGORY DAVIS, Defendant.
MEMORANDUM OPINION & ORDER
This matter is before the Court upon the Gregory Davis' motion to proceed in forma pauperis [DE 271], with respect to his appeal of this Court's denial of the motion for a Writ of Coram Nobis found at Docket Entry 268. For the reasons stated below, his motion will be denied.
Fed. R. App. P. 24(a)(3) provides that, if a party was permitted to proceed in forma pauperis or was determined to be financially unable to obtain an adequate defense in a criminal case in the district court, he may also proceed on appeal in forma pauperis without further authorization unless the district court "certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis."
"The good faith standard is an objective one." Smith v. Athens Distrib. Co., No. 07-2 67 6-SHM-DKV, 2008 WL 4552063 (W.D. Tenn. Oct. 6, 2008) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962)). The test under 28 U.S.C. § 1915(a) for whether an appeal is taken in good faith is whether the litigant seeks appellate review of any non-frivolous issue, and the Court applies that standard here. Coppedge, 369 U.S. at 445-46. The same considerations that led this Court to deny the "Amended Petition for a writ of coram nobis under the All Writs Act, 28 U.S.C. § 1651" [DE 268] also compel the conclusion that an appeal would not be taken in good faith.
Accordingly, IT IS ORDERED, as follows:
(1) It is CERTIFIED, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3), that any appeal in this matter by Defendant Davis would not be taken in good faith.
(2) Defendant Davis' motion to proceed in forma pauperis [DE 271] is DENIED. If Defendant wishes to pursue his appeal, he must pay the full $455 appellate filing fee or file a motion to proceed in forma pauperis and a supporting affidavit in the United States Court of Appeals for the Sixth Circuit within thirty (30) days of service of the Notice of this denial of his motion. See Fed. R. App. P. 24(a)(5).
Signed By:
Joseph M. Hood
Senior U.S. District Judge