Opinion
Criminal No. 02-320 (JRT/FLN).
July 22, 2003.
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
On April 17, 2003, this Court sentenced defendant Andy Roger Baccam ("Baccam") to a term of imprisonment following his guilty plea on drug charges. On April 23, 2003, Baccam appealed his conviction to the United States Court of Appeals for the Eighth Circuit. Baccam now moves to proceed in forma pauperis ("IFP") on appeal.
Section 1915 of Title 28 of the United States Code governs this Court's in forma pauperis determination. To grant this status, the Court must find that Baccam cannot pay the required filing fee, and that the appeal is taken in good faith. 28 U.S.C. § 1915(a).
The Court has reviewed the financial information contained in Baccam's Pre-Sentence Investigation Report, and the information Baccam supplied with his IFP application. Baccam is incarcerated and has no income and no assets. The Court thus concludes that he is unable to pay the required filing fee.
The Court notes that as part of his plea agreement, Baccam waived his right to appeal and to petition for post-conviction relief. Such agreements are enforceable. See United States v. His Law, 85 F.3d 379 (8th Cir. 1996) (specifically enforcing plea agreement not to appeal the sentence by dismissing appeal of the sentence). In some circumstances, however, appellate courts will undertake review even when appellate rights have been waived. See, e.g., United States v. Stubbs, 279 F.3d 402 (6th Cir. 2002) (reviewing sentence despite waiver of appellate rights because waiver was not knowing and voluntary). Baccam's notice of appeal does not indicate the ground or grounds on which he appeals. However, because there are instances in which the appeal would be colorable, the Court cannot find that Baccam's appeal is frivolous. Therefore, the Court determines that it is taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962) (holding that an appeal will be considered to be in good faith so long as it is not frivolous).
Based on these findings and all of the files, records, and proceedings therein, IT IS HEREBY ORDERED that Baccam's application to proceed in forma pauperis on appeal [Docket No. 35] is GRANTED.