White v. USA, No. 3:2012cv00087 - Document 5 (N.D. Ind. 2012)

Court Description: OPINION AND ORDER: Court construes 3 Notice of Appeal to include a request for a certificate of appealability and for leave to proceed in forma pauperis on appeal as to Armand White. The request for a certificate of appealability and for leave to proceed in forma pauperis on appeal is DENIED. Signed by Judge Robert L Miller, Jr on 8/30/2012. cc: White, USCA (tc)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION ARMAND WHITE, Petitioner vs. UNITED STATES OF AMERICA, Respondent ) ) ) ) ) ) ) ) ) CAUSE NO. 3:12-CV-87 RM (Arising out of 3:10-CR-49(3) RM) OPINION and ORDER In June 2010, Armand White pleaded guilty to charges of aggravated bank robbery, 18 U.S.C. §§ 2113(d), and brandishing a firearm during a crime of violence, 18 U.S.C. § 924(c). More than a year after sentence was imposed, Mr. White filed a motion to vacate his sentence under 28 U.S.C. § 2255, contending that he didn t possess the firearm used in the robbery and that his attorney was ineffective because he didn t challenge the sufficiency of the evidence and coerced him into pleading guilty to crimes he didn t commit. The court held that Mr. White s motion was barred by the waiver in his plea agreement and that his claims weren t supported by the record or the law, and denied Mr. White s § 2255 motion on July 9, 2012. The court construes Mr. White s notice of appeal [Doc. No. 109] to include a request for a certificate of appealability and for leave to proceed in forma pauperis on appeal. Issuance of a certificate of appealability would require the court to find that Mr. White has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). He hasn t done this. Mr. White didn t establish that his waiver was anything but informed and voluntary, or that his counsel provided ineffective assistance. His request for a certificate of appealability is therefore denied. Federal Rule of Appellate Procedure 24(a)(3) provides that a financially indigent person may be permitted to proceed on appeal in forma pauperis unless the court certifies that the appeal is not taken in good faith. In other words, the court must determine that a reasonable person could suppose that the appeal has some merit. Walker v. O Brien, 216 F.3d 626, 632 (7th Cir. 2000). Because no reasonable person could find that Mr. White s appeal has any merit, the court concludes that his appeal is not taken in good faith, and his request for pauper status must be denied. Based on the foregoing, the request for a certificate of appealability and for leave to proceed in forma pauperis on appeal is DENIED. SO ORDERED. ENTERED: August 30, 2012 /s/ Robert L. Miller, Jr. Judge United States District Court 2 cc: A. White AUSA Schaffer 3

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