Damond v. Cain et al, No. 2:2015cv06454 - Document 18 (E.D. La. 2016)
Court Description: ORDER AND REASONS denying 14 Motion for Leave to Appeal in forma pauperis. Signed by Judge Sarah S. Vance on 10/28/16. (clc)
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Damond v. Cain et al Doc. 18 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ERNEST DAMOND CIVIL ACTION VERSUS NO. 15-6454 N. BURL CAIN SECTION “R” (3) ORD ER AN D REASON S Before the Court is petitioner Ernest Dam ond’s m otion to proceed in form a pauperis on appeal. 1 Because Dam ond’s arguments lack good faith, the Court DENIES the m otion. I. BACKGROU N D Dam ond is a state prisoner who is presently incarcerated at the Louisiana State Penitentiary in Angola, Louisiana. On J anuary 23, 1997, Dam ond was convicted of three counts of armed robbery under Louisiana law. 2 On May 2, 1997, he was found to be a second offender and was sentenced as such on each count to a concurrent term of sixty-five years im prisonment without benefit of parole, probation, or suspension of 1 2 R. Doc. 14. R. Doc. 9. Dockets.Justia.com sentence. 3 On Decem ber 3, 20 15, Damond filed a petition for writ of habeas corpus. 4 Magistrate J udge Knowles, having determ ined that an evidentiary hearing was unnecessary, recom m ended that Dam ond’s petition for habeas corpus be denied and dism issed with prejudice. 5 This Court approved the Magistrate J udge’s Report and Recom m endation and adopted it as its opinion on September 16, 20 16. 6 In addition, the Court denied Damond a certificate of appealability. 7 Dam ond now m oves to proceed with his appeal in form a pauperis. Dam ond wishes to appeal this Court’s rejection of his argum ent that his sentence violates the rule set forth in Miller v. Alabam a, 132 S. Ct. 2455 (20 12), m ade retroactive by Montgom ery v. Louisiana, 136 S. Ct. 718 (20 16). 8 Dam ond’s m otion to proceed in form a pauperis indicates that his current inm ate account balance is $ 263.78 and that his average m onthly deposits for the preceding six months is $ 71.39. 9 Dam ond’s motion also 3 4 5 6 7 8 9 Id. R. Doc. 1. R. Doc. 9. R. Doc. 11. Id. R. Doc. 15. R. Doc. 14. 2 states that the average m onthly balance for the last six months is $ 29.40 . 10 Dam ond reports no other accounts or sources of income. 11 II. LEGAL STAN D ARD A claim ant m ay proceed with an appeal in form a pauperis if he meets three requirem ents. First, the claimant 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). 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 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)). 10 11 Id. Id. 3 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 Though Dam ond sufficiently indicates his inability to pay legal fees and states the issues he intends to present on appeal, the Court nonetheless concludes that Dam ond’s m otion to proceed in form a pauperis is without m erit. The Court denies the m otion for lack of good faith. As the Magistrate J udge correctly found in his Report and Recom mendation adopted by this Court, Miller is inapplicable to Dam ond. See United States v. W alton, 537 Fed. App’x 430 , 437 (5th Cir. 20 13). Miller prohibited m andatory life without parole for juvenile offenders. 132 S. Ct. at 2464. Though Dam ond was a juvenile when he was sentenced, his sentence was neither mandatory nor was it a sentence of life without parole. Additionally, Damond’s argument that his punishment is nonetheless excessive under the Eighth Am endm ent is clearly foreclosed by precedent. See United States v. Gonzales, 121 F.3d 928, 942 (5th Cir. 1997) (citing 4 Rum m el v. Estelle, 445 U.S. 263, 274-276 (1980 )). Because Damond’s claim s do not have an arguable basis in law or in fact, his appeal is lacks good faith. IV. CON CLU SION For the foregoing reasons, Dam ond’s m otion for leave to appeal in form a pauperis is DENIED. New Orleans, Louisiana, this _28th _ day of October. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 5
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