Arroyo v. US, 94-C-495. Crim. No. 90-CR-143.

• Decision Date: 15 February 1995
• Docket Number: No. 94-C-495. Crim. No. 90-CR-143.,94-C-495. Crim. No. 90-CR-143.
• Citation: Arroyo v. US, 876 F. Supp. 1054 (E.D. Wis. 1995)
• Parties: Modesto ARROYO, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

876 F. Supp. 1054

Modesto ARROYO, Petitioner, v.UNITED STATES of America, Respondent.

No. 94-C-495. Crim. No. 90-CR-143.

United States District Court, E.D. Wisconsin.

February 15, 1995.

COPYRIGHT MATERIAL OMITTED

Modesto Arroyo, pro se.

Stephen J. Liccione, Asst. U.S. Atty., Milwaukee, WI, for U.S.

MEMORANDUM AND ORDER

WARREN, Senior District Judge.

Before the Court is prisoner Modesto Arroyo's pro se Motion to Proceed on Appeal In Forma Pauperis in the above-captioned matter.For the following reasons, his petition must be denied.

I.BACKGROUND FACTS

On October 16, 1990, Arroyo pleaded guilty to one count of conspiring to possess and to distribute cocaine.21 U.S.C. §§ 841(a)(1),846.On January 11, 1991, this Court sentenced him to eighty-seven (87) months imprisonment, making an upward departure from the Sentencing Guidelines.Under the Sentencing Guidelines, Arroyo was placed in Criminal History Category I and given an offense level of twenty-six (26) for an imprisonment range of 63-78 months.The Court, however, concluded that Criminal History Category I did not adequately reflect the seriousness of Arroyo's past criminal conduct.As noted in our January 4, 1994 Order denying Arroyo's first § 2255 petition,

"At the time of sentencing, a question arose as to whether the defendant was the same Modesto Arroyo who was subject to an arrest warrant in New York City on charges of possession and sale of crack cocaine.The defendant swore that he had never been involved in cocaine trafficking before his present offense, but did not deny that he was the man sought by the New York District Attorney's office.Had Mr. Arroyo been convicted of the charges in New York, his criminal history category would have increased from I to II; however, because the defendant had not actually been found guilty, his criminal history category remained at I.

The Court found that Mr. Arroyo's criminal history category was underrepresented by his actual criminal record and therefore made an upward departure from the applicable guideline range.In doing so, the Court acknowledged that the United States had not shown, beyond a reasonable doubt, that Mr. Arroyo was the individual who had failed to appear in New York.Nevertheless, it found that the evidence presented at the hearing was sufficiently reliable to warrant an upward departure.It considered Mr. Arroyo's equivocal explanation of his prior cocaine involvement, then concluded that he did not warrant an acceptance of responsibility reduction and that his criminal history category did not adequately reflect his escapades in New York.

After Mr. Arroyo was sentenced, the charges against him in New York were dropped.Assistant District AttorneyNancy Killian explained what led to the cases sic dismissal in an affidavit:

`My office decided not to extradite the defendant in part because he was serving a lengthy sentence in federal custody.Furthermore, our office decided to dismiss the case based on the fact of his federal sentence and because we elected not to respond to the defendant's suppression motion.As a result of our default on Mr. Arroyo's suppression motion, the motion was granted.I cannot state whether the decision of our office not to respond to the suppression motion was the result of the relative merit of the motion, the fact of Mr. Arroyo's long incarceration in federal prison, or some combination thereof.'"

It was also established that Arroyo had jumped bond in New York.

Arroyo did not appeal his conviction or his sentence.Instead, on July 22, 1992, he filed pro se a Motion to Vacate, Correct, or Set Aside his Sentence pursuant to 28 U.S.C. § 2255.In his petition, Arroyo argued that his due process rights were violated when the Court construed his arrest as a criminal conviction and sentenced him as a second offender; he also claimed that the Court relied upon materially false information in imposing sentence.Relying on United States ex rel. Welch v. Lane,738 F.2d 863(7th Cir.1984), this Court denied his petition because he failed to prove that we relied on inaccurate information at sentencing; alternatively, we ruled that he had waived his claim by failing to file a direct appeal.Arroyo appealed this decision, raising two new claims: (1) that the Court's upward departure from the guidelines without providing sufficient reasons or giving proper notice to the defendant was clearly erroneous under 18 U.S.C. § 3553, and (2) that defense counsel's performance at the trial and appellate levels constituted ineffective assistance of counsel.The Seventh Circuit affirmed our decision, finding that he did not state adequate cause for his failure to appeal his underlying claim, and that he waived his remaining claims by failing to raise them before the district court.

On May 6, 1994, Arroyo filed a second § 2255 motion, claiming that (1)he received ineffective assistance of counsel because his attorney failed to appeal his sentence despite his contrary instructions and failed to review the presentence report with him "at a reasonable time before sentencing," and (2) his due process rights were violated because the Court upwardly departed from the Sentencing Guidelines without giving him prior notice.According to Arroyo, he failed to raise the first claim in his first § 2255 petition because (1) his attorney "misguided" him by indicating that he had, in fact, appealed Arroyo's sentence, and (2)he was ignorant of the law.Arroyo indicated that he failed to raise the second claim because "it is based on a changed circumstances."On October 20, 1994, the Court denied this motion, finding that Arroyo, by failing to show good cause for omitting these claims from his first § 2255 petition or establishing actual prejudice, had abused the writ under Rule 9(b), Rules Governing Section 2255 Proceedings ("Rule 9(b)"), and McCleskey v. Zant,499 U.S. 467, 493-95, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517(1991).Arroyo filed both his Notice of Appeal and the instant motion on January 27, 1995.

II.STANDARD OF REVIEW

The federal in forma pauperisstatute, 28 U.S.C. § 1915, is designed to insure that indigent litigants have meaningful access to the federal courts.Neitzke v. Williams,490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338(1989).As a result, it allows an indigent party to commence an action in federal court, without costs and fees, upon submission of an affidavit asserting an inability "to pay such costs or give security therefor" and stating "the nature of the action, defense or appeal and the affiant's belief that he is entitled to redress."28 U.S.C. § 1915(a).

Recognizing that some nonpaying litigants may attempt to abuse this privilege, however, Congress also authorized the courts to dismiss such a case"if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious."28 U.S.C. § 1915(d).An action is considered frivolous if there is no arguable basis for relief either in law or fact, Denton v. Hernandez,504 U.S. 25, 31-32, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340(1992);Neitzke,490 U.S. at 325, 109 S.Ct. at 1831-32, and, as long as the suit is not frivolous or malicious, a district court should grant the petitioner's request.Free v. United States,879 F.2d 1535, 1536(7th Cir.1989).While a district court may dismiss that part of the complaint it finds frivolous and allow the plaintiff to proceed in forma pauperis through trial on non-frivolous claims only, House v. Belford,956 F.2d 711, 718-19(7th Cir.1992), "if the district court grants in forma pauperis status on appeal for one issue, it must grant such status on all issues."Dixon v. Pitchford,843 F.2d 268, 270(7th Cir.1988)(emphasis added).

In making such determinations, the Court is obliged to give the plaintiff's pro se allegations, however unartfully pleaded, a liberal construction, Hughes v. Rowe,449 U.S. 5, 9-10, 101 S.Ct. 173, 175-76, 66 L.Ed.2d 163(1980)(per curiam);Haines v. Kerner,404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652(1972);Caldwell v. Miller,790 F.2d 589, 595(7th Cir.1986);Bates v. Jean,745 F.2d 1146, 1150(7th Cir.1984), and must accept well-pleaded factual allegations as true.However, under 28 U.S.C. § 1915(d), even pro se allegations are required to contain at least "some minimum level of factual support,"White v. White,886 F.2d 721, 724(4th Cir.1989), and persons should not be allowed to proceed in forma pauperis if their claims are so lacking in specific facts that the Court must invent factual scenarios which cannot be inferred from the pleadings.Smith-Bey v. Hospital Adm'r,841 F.2d 751, 758(7th Cir.1988).

III.DISCUSSION

Federal Rule of Appellate Procedure 24(a)("Rule 24(a)") provides, in relevant part, that

"a party to an action in a district court who desires to proceed on appeal in forma pauperis shall file in the district court a motion for leave so to proceed, together with an affidavit, showing ... the party's inability to pay fees and costs or to give security therefor, the party's belief that that party is entitled to redress, and a statement of the issues which that party intends to present on appeal.If the motion is granted, the party may proceed without further application to the courts of appeals and without prepayment of fees or costs in either court or the giving of security therefor.If the motion is denied, the district court shall state in writing the reasons for the denial ...

If a motion for leave to proceed on appeal in forma pauperis is denied by the district court, or if the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled to proceed in forma pauperis, the clerk shall forthwith serve notice of such action ..."

Arroyo's motion is deficient under Rule 24(a) for several reasons.First of all, it is incomplete; he has only submitted to the Court the first page of a two-page form document used...