Smith v. Louisiana State ( 2022 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA ALCUS SMITH CIVIL ACTION VERSUS NO. 20-3190 STATE OF LOUISIANA SECTION: “L”(1) REPORT AND RECOMMENDATION On June 3, 2022, the United States District Judge ordered that the federal habeas corpus petition in this case be dismissed with prejudice1 but granted petitioner a certificate of appealability with respect to one of the claims asserted.2 Petitioner thereafter filed a notice of appeal3 and a motion seeking leave to pursue his appeal in forma pauperis.4 The motion for pauper status has been referred to the undersigned United States Magistrate Judge.5 For the following reasons, it is recommended that the motion be GRANTED. Under Fed. R. App. P. 24(a) and 28 U.S.C. § 1915, a party may proceed as a pauper on appeal if his indigency is established and unless the district court certifies that the appeal is not taken in good faith or finds that he is not otherwise entitled to proceed as a pauper. Petitioner has established his indigence. In connection with his pauper motion, he has declared under penalty of perjury that he has received no income during the past twelve months, has no checking or savings accounts, and owns no valuable property.6 According to his certified statement of accounts, he has less than $200.00 in his prison accounts.7 Therefore, he has established that he is financially unable to pay the $505.00 appellate filing fee in full, and a federal 1 Rec. Docs. 18 and 19. 2 Rec. Doc. 20. 3 Rec. Doc. 22. 4 Rec. Doc. 23. 5 Rec. Doc. 24. 6 Rec. Doc. 23, p. 1. 7 Id. at p. 2. court has no authority to require a prisoner to make partial prepayments or installment payments for a habeas appeal. See Garza v. Thaler, 585 F.3d 888 (Sth Cir. 2009). Further, as noted, the United States District Judge granted petitioner a certificate of appealability. Given that “[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253, there is no basis for finding that the instant appeal is taken in bad faith. Lastly, the undersigned in unaware of any reason petitioner is not otherwise entitled to proceed as a pauper. RECOMMENDATION It is therefore RECOMMENDED that petitioner’s motion for leave to proceed as a pauper on appeal, Rec. Doc. 23, be GRANTED. A party’s failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge’s report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1430 (Sth Cir. 1996) (en banc). New Orleans, Louisiana, this 7th __ day of July, 2022. JANIS VAN MEERVELD UNITED STATES MAGISTRATE JUDGE