The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DARRYL BROWN, :
Petitioner, :
:
-against- : 20-CV-10491 (VSB)
:
LETITIA JAMES, et al., : ORDER
:
:
Respondent. :
:
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VERNON S. BRODERICK, United States District Judge:
I am in receipt of pro se Petitioner Darryl Brown’s (“Petitioner”) motion for leave to
proceed in forma pauperis on appeal pursuant to Federal Rule of Appellate Procedure 24(a)(1).
(Doc. 31.) For the reasons stated below, the motion is DENIED.
On July 5, 2023, I adopted Magistrate Judge Katharine H. Parker’s August 31, 2021
Report and Recommendation in its near-entirety1 and denied Petitioner’s petition for a writ of
habeas corpus. (Doc. 18.) Petitioner, who at the time was represented by counsel Joey Jackson
(“Mr. Jackson”), then filed a letter on August 7, 2023 requesting that the Clerk of the Court
“notify [him] by mail if Mr. Jackson did file a Notice of Appeal on [his] behalf, or if he failed to
do so.” (Doc. 19.) I ordered Mr. Jackson to provide a status update addressing Petitioner’s
letter, which Mr. Jackson filed on October 5, 2023, detailing his representation of Petitioner and
explaining that he is “no longer in a position to continue [his] representation.” (Doc. 21 at 2.) I
directed Mr. Jackson to properly withdraw as counsel in accordance with Local Rule 1.4, which
1 Although I disagreed with Judge Parker’s analysis of N.Y. Penal Law § 35.15, New York’s justification statute, I
ultimately agreed with Judge Parker’s conclusions.
he did on October 16, 2023, (Doc. 24), and granted Petitioner leave to file a late notice of appeal.
(Doc. 22.)
Petitioner filed his notice of appeal on November 16, 2023. (Doc. 27.) After Petitioner
twice filed the incorrect forms, (Docs. 25–26, 29), I ordered Petitioner to submit to the Pro Se
Intake Unit the correct forms, (Doc. 28.) After Petitioner filed the correct forms but failed to
answer the portion of the form requiring him to state the issues on appeal, (Doc. 28), I ordered
him to file a corrected affidavit, (Doc. 30.) Petitioner then filed the corrected forms, which I will
consider in reviewing his motion. (Doc. 31.)
I have broad discretion in considering whether to grant an applicant’s request to proceed
in forma pauperis on appeal. See Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 322
(S.D.N.Y. 2010). The central question is whether the appeal is taken in good faith. See id. at
322–23. “[G]ood faith is adjudged by an objective standard, and if an appeal is frivolous it is not
taken in good faith.” Morales v. New York and Presbyterian Hosp., No. 18-CV-9711, 2020 WL
13749978 at *3 (S.D.N.Y. April 13, 2020).
Petitioner alleges two grounds for appeal, both of which relate to Petitioner’s argument
that he was entitled to a justification charge. First, he states that I failed to address whether the
“initial aggressor” theory was preserved. Second, he states that the jury instructions should have
included a self-defense justification. Petitioner’s arguments have already been addressed and
rejected, and I find that his claims are frivolous and lack any arguable basis in law or fact.
Therefore, I decline to grant him permission to proceed in forma pauperis on appeal. 28 U.S.C.
§ 1915(e)(2); see also In re Seimon, 421 F.3d 167, 169 (2d Cir. 2005).
Accordingly, Petitioner’s motion for leave to proceed in forma pauperis on appeal is
DENIED. The Clerk of Court is respectfully directed to terminate the open motions, (Docs. 26,
31), and to mail a copy of this order to the pro se Petitioner.
SO ORDERED.
Dated: April 5, 2024
New York, New York / f
Vernon S. Broderick
United States District Judge