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U.S. v. Rogers, 10-10186-01-JWB. (2019)

Court: District Court, D. Kansas Number: infdco20190221d04 Visitors: 18
Filed: Feb. 20, 2019
Latest Update: Feb. 20, 2019
Summary: MEMORANDUM AND ORDER JOHN W. BROOMES , District Judge . This matter is before the court on Defendant's motion for leave to appeal in forma pauperis ("IFP") (Doc. 207.) For the reasons stated below, the motion is DENIED. In a Memorandum and Order filed December 13, 2018, (Doc. 201), the court dismissed Defendant's most recent motion to vacate sentence (Doc. 200) on the grounds that it was a second or successive 2255 motion over which this court lacks jurisdiction. The court also denied a
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MEMORANDUM AND ORDER

This matter is before the court on Defendant's motion for leave to appeal in forma pauperis ("IFP") (Doc. 207.) For the reasons stated below, the motion is DENIED.

In a Memorandum and Order filed December 13, 2018, (Doc. 201), the court dismissed Defendant's most recent motion to vacate sentence (Doc. 200) on the grounds that it was a second or successive § 2255 motion over which this court lacks jurisdiction. The court also denied a certificate of appealability. (Doc. 201 at 4.) Defendant subsequently filed a notice of appeal (Doc. 203), and he now moves for leave to appeal IFP. (Doc. 207.)

Under the governing IFP statute, a district court may authorize a person to appeal without prepayment of fees if the person makes the requisite showing of an inability to pay the fees associated with the appeal. 28 U.S.C. § 1915(a). An appeal may not be taken IFP, however, "if the trial court certifies in writing that it is not taken in good faith." Id., § 1915(a)(3). See also Fed. R. App. P. 24(a)(3) (party previously permitted to proceed IFP may do so on appeal unless the district court certifies the appeal is not taken in good faith). Thus, "to succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised in the action." United States v. Garcia, 164 F. App'x 785, 787, n. 1 (10th Cir. 2006) (quoting Lister v. Dep't of Treasury, 408 F.3d 1309, 1311 (10th Cir. 2005)).

Defendant has made no showing of a reasoned, nonfrivolous argument in support of any issue on appeal. His motion to proceed IFP merely asserts that "[t]he District Court `erred'" in dismissing his § 2255 motion. (Doc. 207 at 1.) Pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3), the court certifies that an appeal of this matter is not taken in good faith, as Defendant has cited no colorable basis in law or fact for an appeal of any issues raised in his motion. See Doc. 201 at 3 ("Defendant's claim . . . is contrary to well-established law.")

IT IS THEREFORE ORDERED this 20th day of February, 2019, that Defendant's Motion for Leave to Appeal In Forma Pauperis (Doc. 207) is DENIED. In accordance with Fed. R. App. P. 24(a)(4), the Clerk of the Court shall immediately notify the parties and the Tenth Circuit Court of Appeals of this order. Pursuant to Fed. R. App. P. 24(a)(5), Defendant may file a motion to proceed on appeal IFP in the Tenth Circuit Court of Appeals within thirty days after service of the aforementioned notice.

Source:  Leagle

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