Francis v. Goodwin et al, No. 2:2016cv12067 - Document 27 (E.D. La. 2017)
Court Description: ORDER AND REASONS denying 25 Motion for Leave to Appeal in forma pauperis. Signed by Judge Sarah S. Vance on 6/20/2017. (cg)
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Francis v. Goodwin et al Doc. 27 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KENNETH FRANCIS CIVIL ACTION VERSUS NO. 16-120 67 J ERRY GOODWIN, WARDEN SECTION “R” (3) ORD ER AN D REASON S Petitioner Kenneth Francis m oves the Court to perm it him to proceed in form a pauperis on appeal.1 Because Francis’s argum ents lack good faith, the Court DENIES petitioner’s m otion. I. BACKGROU N D Francis is a state prisoner currently incarcerated at David Wade Correctional Center in Hom er, Louisiana.2 In 1989, Francis was found guilty by a jury and sentenced to 35 years for arm ed robbery, 30 years for aggravated battery, and 35 years for attem pted first degree m urder, with all sentences to be served concurrently. 3 The State of Louisiana filed a “m ultiple bill” under Louisiana’s Habitual Offender Law.4 1 2 3 4 The trial court found R. Doc. 25. R. Doc. 1 at 1. R. Doc. 1-1 at 2. R. Doc. 14 at 3. Dockets.Justia.com Francis to be a m ultiple offender and sentenced him to 33 years, to be served without benefit of parole, probation or suspension of sentence.5 On April 6, 20 16, Francis filed a petition for a writ of habeas corpus.6 Francis presented this petition as a challenge to the execution of his sentence under 28 U.S.C. § 2241 because he was denied “good tim e” credit. 7 Under La. Stat. Ann. § 15:571.3(C)(1), an inm ate sentenced as a habitual offender is not eligible for good tim e. The Court found that Francis’s challenge to the execution of his sentence is predicated on a challenge to the validity of his underlying habitual offender sentence and thus m ust be brought under 28 U.S.C. § 2254 instead of § 2241.8 The Court construed the application as a § 2254 petition and referred the m atter to Magistrate J udge Daniel E. Knowles for a Report and Recom m endation.9 Magistrate J udge Knowles determ ined that the petition is a second or successive petition and that Francis had not obtained authorization from the United States Court of Appeals for the Fifth Circuit as required by § 2244(b)(3).10 Magistrate J udge Knowles thus recom m ended 5 6 7 8 9 10 Id. R. Doc. 1. R. Doc. 1 at 2. R. Doc. 18 at 3-4. Id. at 5. R. Doc. 19 at 2. 2 that the petition be dism issed without prejudice for lack of subject m atter jurisdiction.11 On May 11, 20 17, the Court approved the Magistrate J udge’s Report and Recom m endation and adopted it as its opinion.12 Francis filed a notice of appeal13 and now m oves to proceed with his appeal in form a pauperis.14 II. LEGAL STAN D ARD A claim ant m ay proceed with an appeal in form a pauperis if he m eets three requirem ents. First, the claim ant m ust subm it “an affidavit that includes a statem ent . . . that [he] is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a)(1). Based on this inform ation, the district court m ust determ ine whether the costs of appeal would cause an undue financial hardship. See Prow s v. Kastner, 842 F.2d 138, 140 (5th Cir. 1998). Second, the claim ant m ust provide the court with an affidavit that “states the issues that the party intends to present on appeal.” Fed. R. App. P. 24(a)(1)(C); accord 28 U.S.C. § 1915(a)(1) (“Such affidavit shall state the nature of the . . . appeal and affiant’s belief that the person is entitled to 11 12 13 14 Id. at 3. R. Doc. 20 . R. Doc. 24. R. Doc. 25. 3 redress.”). Third, the claim ant’s appeal m ust be “taken in good faith.” 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(4)(B). “Good faith is dem onstrated when a party seeks appellate review of any issue ‘not frivolous.’” How ard v. King, 70 7 F.2d 215, 220 (5th Cir. 1983) (citing Coppedge v. United States, 369 U.S. 438, 445 (1962)). Good faith “does not require that probable success be shown,” but rather “is lim ited to whether the appeal involves legal points arguable on their m erits (and therefore not frivolous).” United States v. Arroy o-Jurado, 477 F. App’x 150 , 151 (5th Cir. 20 12). “A com plaint is frivolous if it lacks an arguable basis either in law or in fact.” Kingery v. Hale, 73 F. App’x 755, 755 (5th Cir. 20 0 3). III. D ISCU SSION Francis’ m otion to proceed in form a pauperis suggests that he is unable to pay fees related to his appeal. The m otion and supporting docum entation indicates that Francis’s current inm ate account balance is $ 0 .0 0 and that he has no other assets.15 Francis’s m otion m ust nevertheless be denied because the argum ents he intends to raise on appeal do not have an arguable basis either in law or in fact and are therefore frivolous. In his notice of appeal, Francis does not 15 R. Doc. 25 at 6-7. 4 challenge the Magistrate J udge’s determ ination that his petition is second or successive.16 He argues instead that his petition was im properly construed as a § 2254 petition. Francis contends that his petition for habeas corpus relief should be considered under 28 U.S.C. § 2241 rather than § 2254 because he challenges the denial of good tim e and alleges that the Departm ent of Corrections is arbitrarily denying him good tim e credits.17 Disputes as to good tim e are properly brought under § 2241 if they challenge the “m anner in which a sentence is carried out or the prison authorities’ determ ination of its duration.” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 20 0 0 ); see also Gibbs v. Cain, No. 12-30 0 4, 20 13 WL 3490 90 9, at *2 (E.D. La. J uly 10 , 20 13) (claim that the Departm ent of Public Safety and Corrections exceeded its authority in denying good tim e should be brought under § 2241). Yet Francis is ineligible for good tim e credit because of his habitual offender sentence, not the m anner in which his sentence is being carried out by the Departm ent of Corrections. See La. Stat. Ann. § 15:571.3(C)(1). As the Court previously determ ined, Francis’s challenge to the validity of his habitual offender sentence m ust be brought under § 2254. 18 16 17 18 R. Doc. 24. Id. at 2-4. R. Doc. 18. 5 Because Francis’s petition is second or successive, it cannot be considered on the m erits unless Francis first obtains authorization from the Fifth Circuit. IV. CON CLU SION For the foregoing reasons, petitioner’s m otion for leave to appeal in form a pauperis is denied. 20th New Orleans, Louisiana, this _ _ _ _ _ day of J une, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 6
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