Smith v. Eischen

U.S. District Court, District of Minnesota June 3, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DARRELL D. SMITH,
Petitioner,
Civil No. 23-357 (JRT/DJF)

v.
MEMORANDUM OPINION AND ORDER

DENYING APPLICATION TO PROCEED IN
WARDEN B. EISCHEN,
FORMA PAUPERIS ON APPEAL
FPC Duluth,

Respondent.

Darrell D. Smith, Reg. No. 16355-029, FPC Duluth, P.O. Box 1000, Duluth,
MN 55814, pro se Petitioner.

Ana H. Voss and Kristen Elise Rau, UNITED STATES ATTORNEY'S OFFICE,
300 South Fourth Street, Suite 600, Minneapolis, MN 55415, for
Respondent.

Petitioner Darrell Smith is serving a 175-month sentence at the Federal Prison
Camp in Duluth after pleading guilty to wire fraud and aggravated identity theft. Sent’g
Judgment at 1–2, United States v. Smith, No. 17-2030 (N.D. Iowa May 22, 2017), ECF No.
96. He filed a petition for writ of habeas corpus pursuant to

28 U.S.C. § 2241

 challenging 
the validity of a prior tax conviction and his current sentence.  (Pet. for Writ of Habeas 
Corpus (“Pet.”) at 2, Feb. 13, 2023, Docket No. 1.)  The Court adopted Magistrate Judge 
Dulce J. Foster’s Report and Recommendation (“R&R”), dismissing three of the four claims 
entirely and dismissing the remaining claim to the extent that it challenges Smith’s prior 
tax conviction or the imposition of his current sentence or consecutive sentences.  (R. & 
R. at 6–12, June 9, 2023, Docket No. 4; Order Adopting R. & R. at 1–2, July 24, 2023, Docket 
No. 10.)  After Smith responded, the Magistrate Judge issued another R&R recommending 

dismissal of Smith’s remaining claim, which the Court adopted.1  (R. & R. at 4–7, Feb. 8, 
2024, Docket No. 17; Mem. Op. & Order at 5–12, Apr. 30, 2024, Docket No. 22.)  Smith 
appealed the Court’s Order to the Eighth Circuit and seeks to proceed in forma pauperis 
(“IFP”) on appeal.  (Not. of Appeal to 8th Cir. (“Notice of Appeal”), May 10, 2024, Docket 

No. 24; Appl. to Proceed IFP on Appeal, May 10, 2024, Docket No. 25.)  Because the Court 
finds that Smith’s appeal is not taken in good faith, it will deny his application to proceed 
IFP on appeal.                                                            

    A litigant who seeks to be excused from paying the filing fee for an appeal in a 
federal case may apply for IFP status under

28 U.S.C. § 1915

.  To qualify for IFP status, the 
litigant must demonstrate that they cannot afford to pay the full filing fee.

28 U.S.C. § 1915

(a)(1).  Even if a litigant is found to be indigent, however, IFP status will be denied 

if the Court finds that the litigant’s appeal is not taken in good faith.

Id.

 § 1915(a)(3).  
Good faith in this context is judged by an objective standard and not by the appellant’s 
subjective point of view.  Coppedge v. United States,

369 U.S. 438

, 444–45 (1962).  To 
determine whether an appeal is taken in good faith, the Court must determine whether 

the claims to be decided on appeal are factually or legally frivolous.  Cf. Neitzke v. 


    1 Dismissal without prejudice means that Smith can make any necessary changes and 
refile his Petition.  However, the Court will lack jurisdiction to consider any such claims without 
a showing that § 2255 provides an inadequate or ineffective remedy.

28 U.S.C. § 2255

(e).   
Williams,

490 U.S. 319, 325

 (1989).  An argument is legally frivolous when “none of the 
legal points are arguable on their merits.”

Id.

 (cleaned up).            

    The issues Smith intends to raise on appeal are legally frivolous.  His notice of 
appeal simply states that the “Judge did not address several statutory questions Smith 
raised in his original argument(s).”  (Notice of Appeal at 1.)  This, however, is incorrect.  
The Court thoroughly addressed Smith’s arguments regarding the calculation of time 

served and concluded that the Bureau of Prisons correctly calculated time served under

18 U.S.C. § 3585

(b).  (See Mem. Op. & Order at 7–9.)  The Court did not entertain the 
merits of Smith’s challenge to the validity of his conviction because it concluded that a

28 U.S.C. § 2255

 motion is the appropriate vehicle in which to raise such a challenge, and 
§ 2255(e)’s savings clause is not satisfied merely because Smith’s § 2255 motion was 
dismissed for being untimely.  (Id. at 6–7.)                              
    Because none of Smith’s claims to be decided on appeal are arguable on their 

merits, the Court concludes that Smith’s appeal is not taken in good faith.  Accordingly, 
the Court will deny Smith’s Application to Proceed IFP on Appeal.

ORDER

     Based on the foregoing, and  all the files,  records, and  proceedings herein,  IT IS 
HEREBY ORDERED that Petitioner’s Motion to Proceed IFP on Appeal [Docket No. 25] is 
DENIED. 

DATED:  June 3, 2024                              tiny  | Hedin 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                            United States District Judge 

                                    -4-

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DARRELL D. SMITH,
Petitioner,
Civil No. 23-357 (JRT/DJF)

v.
MEMORANDUM OPINION AND ORDER

DENYING APPLICATION TO PROCEED IN
WARDEN B. EISCHEN,
FORMA PAUPERIS ON APPEAL
FPC Duluth,

Respondent.

Darrell D. Smith, Reg. No. 16355-029, FPC Duluth, P.O. Box 1000, Duluth,
MN 55814, pro se Petitioner.

Ana H. Voss and Kristen Elise Rau, UNITED STATES ATTORNEY'S OFFICE,
300 South Fourth Street, Suite 600, Minneapolis, MN 55415, for
Respondent.

28 U.S.C. § 2241

 challenging 
the validity of a prior tax conviction and his current sentence.  (Pet. for Writ of Habeas 
Corpus (“Pet.”) at 2, Feb. 13, 2023, Docket No. 1.)  The Court adopted Magistrate Judge 
Dulce J. Foster’s Report and Recommendation (“R&R”), dismissing three of the four claims 
entirely and dismissing the remaining claim to the extent that it challenges Smith’s prior 
tax conviction or the imposition of his current sentence or consecutive sentences.  (R. & 
R. at 6–12, June 9, 2023, Docket No. 4; Order Adopting R. & R. at 1–2, July 24, 2023, Docket 
No. 10.)  After Smith responded, the Magistrate Judge issued another R&R recommending 

dismissal of Smith’s remaining claim, which the Court adopted.1  (R. & R. at 4–7, Feb. 8, 
2024, Docket No. 17; Mem. Op. & Order at 5–12, Apr. 30, 2024, Docket No. 22.)  Smith 
appealed the Court’s Order to the Eighth Circuit and seeks to proceed in forma pauperis 
(“IFP”) on appeal.  (Not. of Appeal to 8th Cir. (“Notice of Appeal”), May 10, 2024, Docket 

No. 24; Appl. to Proceed IFP on Appeal, May 10, 2024, Docket No. 25.)  Because the Court 
finds that Smith’s appeal is not taken in good faith, it will deny his application to proceed 
IFP on appeal.                                                            

    A litigant who seeks to be excused from paying the filing fee for an appeal in a 
federal case may apply for IFP status under

28 U.S.C. § 1915

.  To qualify for IFP status, the 
litigant must demonstrate that they cannot afford to pay the full filing fee.

28 U.S.C. § 1915

(a)(1).  Even if a litigant is found to be indigent, however, IFP status will be denied 

if the Court finds that the litigant’s appeal is not taken in good faith.

Id.

 § 1915(a)(3).  
Good faith in this context is judged by an objective standard and not by the appellant’s 
subjective point of view.  Coppedge v. United States,

369 U.S. 438

, 444–45 (1962).  To 
determine whether an appeal is taken in good faith, the Court must determine whether 

the claims to be decided on appeal are factually or legally frivolous.  Cf. Neitzke v. 


    1 Dismissal without prejudice means that Smith can make any necessary changes and 
refile his Petition.  However, the Court will lack jurisdiction to consider any such claims without 
a showing that § 2255 provides an inadequate or ineffective remedy.

28 U.S.C. § 2255

(e).   
Williams,

490 U.S. 319, 325

 (1989).  An argument is legally frivolous when “none of the 
legal points are arguable on their merits.”

Id.

 (cleaned up).            

    The issues Smith intends to raise on appeal are legally frivolous.  His notice of 
appeal simply states that the “Judge did not address several statutory questions Smith 
raised in his original argument(s).”  (Notice of Appeal at 1.)  This, however, is incorrect.  
The Court thoroughly addressed Smith’s arguments regarding the calculation of time 

served and concluded that the Bureau of Prisons correctly calculated time served under

18 U.S.C. § 3585

(b).  (See Mem. Op. & Order at 7–9.)  The Court did not entertain the 
merits of Smith’s challenge to the validity of his conviction because it concluded that a

28 U.S.C. § 2255

 motion is the appropriate vehicle in which to raise such a challenge, and 
§ 2255(e)’s savings clause is not satisfied merely because Smith’s § 2255 motion was 
dismissed for being untimely.  (Id. at 6–7.)                              
    Because none of Smith’s claims to be decided on appeal are arguable on their 

merits, the Court concludes that Smith’s appeal is not taken in good faith.  Accordingly, 
the Court will deny Smith’s Application to Proceed IFP on Appeal.

ORDER

     Based on the foregoing, and  all the files,  records, and  proceedings herein,  IT IS 
HEREBY ORDERED that Petitioner’s Motion to Proceed IFP on Appeal [Docket No. 25] is 
DENIED. 

DATED:  June 3, 2024                              tiny  | Hedin 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                            United States District Judge 

                                    -4-

Reference

Status: Unknown