IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHARLES ROBINSON, :

Plaintiff, :

vs. : CIVIL ACTION 09-00488-WS-B

J.C. GILES, :

Defendant. :

REPORT AND RECOMMENDATION

This matter is before the Court on Petitioner Charles

Robinson’s Motion for Leave to Appeal In Forma Pauperis (Doc. 22).

Robinson, an Alabama prisoner proceedings pro se, filed this action

seeking habeas corpus relief under 28 U.S.C. § 2254. In an Order

dated January 28, 2010, the undersigned recommended that Robinson’s

petition be dismissed as a successive petition under 28 28 U.S.C.

§ 2244(b)(3)(A). (Doc. 16). The undersigned also recommended that

no certificate of appealability issue as no reasonable jurist could

find it debatable whether the petition should be dismissed. The

Report and Recommendation (Doc. 16) was adopted by the District

Court, and judgment was entered dismissing Robinson’s petition, and

denying a certificate of appealability on March 1, 2010. (Docs. 17,

18). 

An appeal may not be taken in forma pauperis if the trial court

certifies, either before or after the notice of appeal is filed,

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that the appeal is not taken in good faith. 28 U.S.C. 1915(a)(3);

Fed. R. App. P. 24(a)(3). A party demonstrates good faith by seeking

appellate review of any issue that is not frivolous when judged

under an objective standard. See Coppedge v. United States, 369 U.S.

438, 445, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962); Busch v. County of

Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999); United States v.

Wilson, 707 F. Supp. 1582, 1583 (M.D. Ga. 1989), aff’d., 896 F.2d

558 (11th Cir. 1990). An issue is frivolous when it appears that the

legal theories are “indisputably meritless.” See Neitzke v.

Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 104 L. Ed. 2d 338

(1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Or,

stated another way, an in forma pauperis action is frivolous, and

thus not brought in good faith, if it is “without arguable merit

either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th

Cir. 2002); Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).

“Arguable means capable of being convincingly argued.” Sun v.

Forrester, 939 F.2d 924, 925 (11th Cir. 1991) (per curiam). The

undersigned finds, for the reasons set forth in the Report and

Recommendation (Doc. 16), that the issues Robinson seeks to raise

on appeal, are “without arguable merit either in law or fact,” and

are therefore not brought in good faith. Accordingly, the

undersigned recommends that Robinson’s Motion for Leave to Appeal

In Forma Pauperis (Doc. 22) be denied. 

The attached sheet contains important information regarding

objections to the Report and Recommendation.

Case 1:09-cv-00488-WS-B Document 23 Filed 05/24/10 Page 2 of 5
DONE this 24th day of May, 2010.

 /S/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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 1

The Court’s Local rules are being amended to reflect the new

computations of time as set out in the amendments to the Federal

Rules of Practice and Procedure, effective December 1, 2009.

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND 

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation, or

anything in it, must, within fourteen (14) days of the date of

service of this document, file specific written objections with the

Clerk of this Court. Failure to do so will bar a de novo

determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the factual

findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C);

Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988); Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. Unit B, 1982)(en banc). The

procedure for challenging the findings and recommendations of the

Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June

1, 1997), which provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing a

“Statement of Objection to Magistrate Judge’s

Recommendation” within ten days1 after being served with

a copy of the recommendation, unless a different time is

established by order. The statement of objection shall

specify those portions of the recommendation to which

objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at

the time of filing the objection, a brief setting forth

the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different

disposition made. It is insufficient to submit only a

copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be

submitted or referred to and incorporated into the brief

in support of the objection. Failure to submit a brief

in support of the objection may be deemed an abandonment

of the objection. 

A magistrate judge's recommendation cannot be appealed to a

Court of Appeals; only the district judge's order or judgment can

be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded).

Pursuant to 28 U.S.C. § 1915 and FED.R.CIV.P. 72(b), the Magistrate

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Judge finds that the tapes and original records in this case are

adequate for purposes of review. Any party planning to object to

this recommendation, but unable to pay the fee for a transcript, is

advised that a judicial determination that transcription is

necessary is required before the United States will pay the cost of

the transcript.

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