Butler v. Vannoy et al, No. 2:2016cv03399 - Document 20 (E.D. La. 2017)

Court Description: ORDER AND REASONS denying 19 Motion for Leave to Appeal in forma pauperis. Signed by Judge Sarah S. Vance on 11/6/2017. (cg)

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Butler v. Vannoy et al Doc. 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J ODY BUTLER CIVIL ACTION VERSUS NO. 16-3399 DARREL VANNOY SECTION “R” (5) ORD ER Petitioner J ody Butler m oves the Court to perm it him to proceed in form a pauperis on appeal. 1 Because Butler’s argum ents lack good faith, the Court denies the motion. Butler is a prisoner at the Louisiana State Penitentiary. 2 On February 11, 20 11, he was sentenced to life im prisonm ent as a habitual offender after a jury found him guilty of m arijuana possession and cocaine possession. 3 The Louisiana Court of Appeal for the Fourth Circuit initially reversed Butler’s conviction on Fourth Am endm ent grounds, but his conviction was ultim ately upheld by the Louisiana Suprem e Court. State v. Butler, 117 So. 3d 87 (La. 20 13). On September 19, 20 17, the Court dism issed 1 2 3 R. Doc. 19. R. Doc. 3. Id. at 1; R. Doc. 13 at 1-2. Dockets.Justia.com Butler’s petition for habeas corpus and denied a certificate of appealability. 4 Butler now m oves to appeal in form a pauperis. 5 A claim ant m ay proceed with an appeal in form a pauperis if he m eets 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). Based on this information, the district court m ust determine 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)). Good faith “does not require that probable success be shown,” but rather “is lim ited to whether the appeal involves legal 4 5 R. Doc. 15. R. Doc. 19. 2 points arguable on their merits (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). Butler’s m otion to proceed in form a pauperis indicates that his current inm ate account balance is $ 10 2.32 and that he has no other assets. 6 Although Butler’s m otion suggests his inability to pay fees related to his appeal, his m otion m ust be denied because the arguments 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, Butler argues that his rights to due process and equal protection were violated because the state court abandoned a well-established rule of law in the course of reviewing his conviction. 7 As explained in the Court’s order dism issing Butler’s petition, habeas relief is not available based on alleged violations of state law, and Butler’s Fourth Am endment challenge is barred by the Supreme Court’s decision in Stone v. Pow ell, 428 U.S. 465, 481 (1976). 6 7 R. Doc. 19 at 6. R. Doc. 17. 3 For the foregoing reasons, Butler’s motion for leave to appeal in form a pauperis is DENIED. 6th New Orleans, Louisiana, this _ _ _ _ _ day of November, 20 17. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 4

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