Opinion
CRIMINAL ACTION NO. 02-00161-CG-B.
July 22, 2009
REPORT AND RECOMMENDATION
This matter is before the Court on Defendant Kenney Lee Matheson's Motion for Leave to Appeal In Forma Pauperis (Doc. 219). A review of the case docket reflects that Defendant has filed numerous post-convictions motions. In an Order dated June 10, 2009, Chief District Judge Granade denied Petitioner's Motion for a Certificate of Appealability. (Doc. 218). In denying Petitioner's motion, Judge Granade found that Petitioner failed to demonstrate that the issues he seeks to raise on appeal are debatable among jurists of reason, that a court could resolve the issues in a differ manner, or that they are deserving of encouragement to proceed further.
Following Judge Granade's ruling, Petitioner filed the instant Motion for Leave to Appeal In Forma Pauperis. An appeal may not be taken in forma pauperis if the trial court certifies, either before or after the notice of appeal is filed, that the appeal is not taken in good faith. 28 U.S.C. 1915(a)(3); Fed.R.App.P. 24(a)(3). A party demonstrates good faith by seeking appellate review of any issue that is not frivolous when judged under an objective standard. See Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962); Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999); United States v. Wilson, 707 F. Supp. 1582, 1583 (M.D. Ga. 1989), aff'd., 896 F.2d 558 (11th Cir. 1990). An issue is frivolous when it appears that the legal theories are "indisputably meritless." See Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or, stated another way, an in forma pauperis action is frivolous, and thus not brought in good faith, if it is "without arguable merit either in law or fact." Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001). "Arguable means capable of being convincingly argued." Sun v. Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (per curiam).
The undersigned finds, in light of Judge Granade's determination, in the Order denying Petitioner's COA, that the issues Petitioner seeks to raise on appeal are not debatable and could not be resolved by a court in a different manner, that Petitioner's appeal is not brought in good faith. Accordingly, the undersigned recommends that Petitioner's Motion for Leave to Appeal In Forma Pauperis (Doc. 219) be denied.