-JDL Anderson v. Director, TDCJ-CID, No. 6:2010cv00420 - Document 68 (E.D. Tex. 2012)

Court Description: MEMORANDUM OPINION AND ORDER denying 66 MOTION for Leave to Appeal in forma pauperis filed by Terry Weldon Anderson. All future motions should be filed with the Clerk of the United States Court of Appeals for the Fifth Circuit. Signed by Judge Leonard Davis on 7/9/12. (mjc, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION TERRY WELDON ANDERSON, #654139 § VS. § DIRECTOR, TDCJ-CID § CIVIL ACTION NO. 6:10cv420 MEMORANDUM OPINION AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Came on for consideration, the Appellant s motion to proceed in forma pauperis on appeal (docket entry #66). Appellant did not proceed in forma pauperis in the District Court. On February 21, 2012, the assigned Magistrate Judge filed a Report and Recommendation (R&R) that Appellant s petition be dismissed with prejudice and a certificate of appealability be denied (docket entry #52), in part because Appellant had made a knowing and voluntary guilty plea in the trial court, which foreclosed most avenues of federal habeas relief, and in part because Appellant s remaining ineffective assistance of counsel claims were without merit. The Appellant then filed objections (docket entry #58) to the Magistrate Judge s R&R. In summary, Appellant expanded some of his ineffective assistance of counsel claims, without merit. He added little to his original petition, including on the issue of entering into a knowing and voluntary guilty plea. See generally Objections. This Court therefore overruled the Objections, denied Appellant s petition, and denied a Certificate of Appealability ( COA ) on March 21, 2012. See docket entries #59, 60. For the reasons stated in the Report and Recommendation and the Order of Dismissal, Appellant does not have a good faith non-frivolous issue for appeal as required for leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A). Baugh v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997) (To comply with Rule 24 and to inform the Court of Appeals of the reasons for its certification, a district court may incorporate by reference its order dismissing an appellant s claims (in the context of a civil rights action pursuant to 42 U.S.C. § 1983)). Additionally, as noted above, Appellant did not proceed in forma pauperis in the District Court. See Fed. R. App. P. 24(a)(3). Furthermore, because the Appellant has not shown that he is entitled to a certificate of appealability, he also has not shown that he is entitled to proceed in forma pauperis on appeal. United States v. Delario, 120 F.3d 580, 582-83 (5th Cir. 1997). Finally, Appellant attached a recent copy of his inmate trust fund account. Although he filed an affidavit that he does not own any property, stocks or bonds or have any money in the bank or in his trust fund account, see docket entry #67, his trust fund account statement shows that he has a regular source of funds, has received $305.00 over the past six months and has had an average deposit in his account of $50.83 over the past six months. He therefore could pay an in forma pauperis fee on his appeal, even if he were required to pay it in increments. Therefore, Appellant is denied leave to proceed in forma pauperis on appeal. It is accordingly ORDERED that the motion to proceed in forma pauperis on appeal (docket entry #66) is DENIED. All future motions should be filed with the Clerk of the United States Court of Appeals for the Fifth Circuit. So ORDERED and SIGNED this 9th day of July, 2012. __________________________________ LEONARD DAVIS UNITED STATES DISTRICT JUDGE