Opinion

McMeans v. Butler (INMATE 4)

Court
District Court, M.D. Alabama
Filed
Feb 10, 2025
Cited by
0 cases
Authority
More cited than 33.9%

The opinion

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

THOMAS KENYON McMEANS, )

)

Petitioner, )

) CIVIL ACTION NO.

v. ) 2:23cv332-MHT

) (WO)

REOSHA BUTLER, )

Correctional Warden, III, )

et al., )

)

Respondents. )

ORDER

This cause is now before the court on the

petitioner's notice of appeal (Doc. 40), which the

court is treating as a motion to proceed on appeal in

forma pauperis.

28 U.S.C. § 1915(a)(3) provides that “[a]n appeal

may not be taken in forma pauperis if the trial court

certifies in writing that it is not taken in good

faith.” In making this determination as to good faith,

a court must use an objective standard, such as whether

the appeal is "frivolous," Coppedge v. United States,

369 U.S. 438, 445 (1962), or "has no substantive

merit." United States v. Bottoson, 644 F.2d 1174, 1176

(5th Cir. Unit B May 15, 1981) (per curiam); see also

Rudolph v. Allen, 666 F.2d 519, 520 (11th Cir. 1982)

(per curiam); Morris v. Ross, 663 F.2d 1032 (11th Cir.

1981).

Applying this standard, this court is of the

opinion that the petitioner's appeal is without a legal

or factual basis and, accordingly, is frivolous and not

taken in good faith. See, e.g., Rudolph v. Allen,

supra; Brown v. Pena, 441 F. Supp. 1382 (S.D. Fla.

1977), aff'd without opinion, 589 F.2d 1113 (5th Cir.

1979). In this case, petitioner filed a successive

habeas petition without first obtaining the required

authorization to do so from the Court of Appeals. The

court dismissed the case due to the lack of

authorization in January 2024. Petitioner moved for

leave to reopen the time for appeal the dismissal too

late, so the court denied the request. In any case,

the appeal was without basis. He also filed a motion

2

for certificate of appealability, which the court

denied as unnecessary for the dismissal of an

unauthorized successive petition. See December 17,

2024 Order (Doc. 39). He now appeals the court’s order

denying him a certificate of appealability and refusing

to reopen the time for appeal. As petitioner has

provided no potentially viable grounds for his appeal,

the court finds the appeal is frivolous.

***

Accordingly, it is ORDERED that the petitioner's

motion to proceed on appeal in forma pauperis is

denied; and that the appeal in this cause is certified,

pursuant to 28 U.S.C. § 1915(a)(3), as not taken in

good faith.

DONE, this the 10th day of February, 2025.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

3

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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