The opinion
IN THE DISTRICT COURT OF T HE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
JAMES McCONICO, JR., )
)
Petitioner, )
) CIVIL ACTION NO.
v. ) 2:19cv111-MHT
) (WO)
ALABAMA BOARD OF PARDONS & )
PAROLE, et al., )
)
Respondents. )
ORDER
This cause is now before the court on the
petitioner's notice of appeal (doc. no. 47), 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,
* Petitioner filed this notice of appeal in
relation to the court’s June 7, 2019, judgment.
Apparently, he filed the notice of appeal before
learning that the court had vacated that judgment. See
Order (doc. no. 45). Because an appeal from a vacated
judgment is moot, petitioner may wish to withdraw this
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).
***
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
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good faith.
DONE, this the 15th day of July, 2019.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
3