IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF ALABAMA 

 SOUTHERN DIVISION 

UNITED STATES OF AMERICA : 

 : 

vs. : CRIMINAL ACTION 08-00135-KD 

 : 

WILMER ALONZO STANLEY HINDS : 

 REPORT AND RECOMMENDATION

Pending before the Court is Defendant’s Notice of Appeal, 

Motion for Leave to Appeal In Forma Pauperis and Motion to 

Appoint Counsel (Doc. 65), which has been referred to the 

undersigned pursuant to 28 U.S.C. § 636(b)(3). For the reasons 

set forth below, it is recommended that the Motions be denied 

because the appeal is frivolous and not taken in good faith. 

On October 9, 2008, Defendant was sentenced after pleading 

guilty to count one of the indictment, namely, conspiracy to 

distribute and possess with intent to distribute cocaine in 

violation of 21 U.S.C. § 846. On December 4, 2009, Defendant 

filed a Motion for Specific Performance by the Government, 

alleging that, because of his race, the Government had not filed 

a motion pursuant to Federal Rule of Criminal Procedure 35, as 

promised in the plea agreement, to reduce his sentence for his 

substantial assistance (Doc. 52), to which the Government filed a 

Response on December 23, 2009 (Doc. 56). The Government asserted 

that the Court lacked jurisdiction because Defendant had failed 

to make the required threshold showing of a constitutionally 

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impermissible motivation for not filing the Rule 35 motion – his 

allegations were merely conclusory. In the alternative, the 

Government set out the reasons such a motion had not been filed. 

 By Endorsed Order dated January 4, 2010 (Doc. 57), Judge DuBose 

denied Hinds’ Motion for Specific Performance for the reasons set 

out in the Government’s Response (Doc. 56). The Court on March 

11, 2010, denied Defendant’s Motion for Leave to Supplement the 

Motion for Specific Performance (Docs. 60,61) since there was no 

longer any motion to supplement (Doc. 62). 

 After a review of the Notice of Intent to File PostConviction Appeal, Request Appoint of Appellate Counsel, and to 

Proceed In Forma Pauperis (Doc. 65), with the attached supporting 

Affidavit (but without the statement of his prison account or 

other documentation of his assets and income), it appears that 

Defendant may not have the present financial inability to pay the 

filing fees. The Court notes that Defendant had CJA counsel 

throughout the proceedings, including sentencing. However, even 

if though the Court found that Defendant does not have the 

present ability to pay the filing fees, a party may not appeal in 

forma pauperis unless the District Court also certifies that the 

appeal is taken in good faith. 28 U.S.C. § 1915(a). The test 

for whether an appeal is taken in good faith is whether Defendant 

seeks appellate review of any issue that is not frivolous. See 

Ex parte Chayoon, 2007 WL 1099088, *1(M.D. Fla. 2007). In other 

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words, an appeal that is plainly frivolous cannot be taken 

without the prepayment of fees and costs. See United States v. 

Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997); Clements v. 

Wainwright, 648 F.2d 979, 981 (5th Cir. 1981). Here, Defendant 

has merely filed a Notice of Appeal and a Motion for Leave to 

Proceed In Forma Pauperis without claiming any entitlement to 

redress or stating the issues he intends to present on appeal, as 

required by Federal Rule of Appellate Procedure 24 (a). 

Therefore, Defendant’s Motion for Leave to Proceed In Forma 

Pauperis is due to be denied since it is frivolous and not taken 

in good faith. 

 In conclusion, it is recommended that Defendant’s Motion for 

Leave to Proceed In Forma Pauperis be denied and that the 

District Judge certify in writing that Defendant’s appeal is 

frivolous and not taken in good faith. It is further recommended 

that Defendant’s request to appoint counsel to represent him on 

appeal contained in the Motion also be denied. Since this 

recommendation is made after a referral pursuant to 28 U.S.C. § 

636(b)(3), Defendant does not have the opportunity to file an 

objection. Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th

Cir. 1998)(“Section 636(b)(3) does not provide a party with ten 

days to file written objections with the district court.”). The 

Clerk is therefore DIRECTED to refer this Report and 

Recommendation to the District Judge without the necessity of a 

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waiting period. 

DONE this 10th day of November, 2010. 

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE 

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