USA v. Masuisui et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
UNITED STATES OF AMERICA,
Plaintiff,
vs.
KIRISIMASI MASUISUI,
Defendant.
Case No. 14-cr-00173-DKW-1
ORDER (1) DENYING LEAVE TO
PROCEED IN FORMA
PAUPERIS ON APPEAL; (2)
DENYING A CERTIFICATE OF
APPEALABILITY1
On April 15, 2024, Petitioner Kirisimasi Masuisui filed a Notice of Appeal
of this Court’s February 26, 2024 Order denying his Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.
Dkt. Nos. 580 & 582. Therein, Masuisui also moved for this Court to reconsider
its previous denial of a Certificate of Appealability (“COA”) and grant him leave
to proceed in forma pauperis on appeal. See Dkt. Nos. 582-1 & 582-2. For the
reasons set forth below, both of Masuisui’s requests are DENIED.
1 Pursuant to Local Rule 7.1(d), the Court finds these matters suitable for disposition without a
hearing.
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DISCUSSION2
I. 	In Forma Pauperis Status
Motions to proceed in forma pauperis on appeal are governed by Federal
Rule of Appellate Procedure 24(a) and 28 U.S.C. § 1915(a)(3). As relevant here,
Rule 24(a)(1) provides that:
Except as stated in Rule 24(a)(3), a party to a district-court action who
desires to appeal in forma pauperis must file a motion in the district
court. The party must attach an affidavit that:
(a) shows in the detail prescribed by Form 4 of the Appendix of
Forms the party’s inability to pay or to give security for fees
and costs;
(b) claims an entitlement to redress; and
(c) states the issues that the party intends to present on appeal.
Fed. R. App. P. 24(a)(1). Further, “[a]n appeal may not be taken in forma pauperis
if the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C.
§ 1915(a)(3). This is an “easily met test” as “[t]he good faith requirement is
satisfied if the petitioner seeks review of any issue that is not frivolous.” Gardner
v. Pogue, 558 F.2d 548, 550–51 (9th Cir. 1977) (quotation marks and citations
omitted). An issue may be deemed frivolous, however, “where it lacks an arguable
basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
2 As Masuisui is pro se, the Court liberally construes his filings. See Erickson v. Pardus, 551
U.S. 89, 94 (2007).
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Here, Masuisui has failed to meet the requirements of Rule 24(a)(1) because
he has neither utilized Form 4, nor otherwise provided the requisite detail to
illustrate his inability to pay or give security for fees and costs. Instead, Masuisui
submitted an Application to Proceed in District Court Without Prepaying Fees or
Costs (AO 240). See Dkt. No. 582-2. “Although [AO 240] contains some of the
information required by Form 4, it leaves many questions included in Form 4
unanswered.” McAllister v. Hawaiiana Mgmt. Co., 2013 WL 12407395, at *1 (D.
Haw. Apr. 4, 2013). For example, Form 4 seeks, among other things, information
from the prospective appellant and his/her spouse regarding expected future
income and expenses, employment history for the past two years, and tax
obligations—none of which is provided by Masuisui’s IFP application. See Fed.
R. App. P. Form 4; Dkt. No. 582-2. As such, due to Masuisui’s failure to comply
with Rule 24(a)(1), the Court is unable to properly assess his ability to pay the
requisite fees. His application to proceed in forma pauperis must, therefore, be
denied.
Moreover, even if Masuisui had fully complied with Rule 24(a)(1), the Court
would still deny his application to proceed in forma pauperis as any appeal would
be frivolous. As the Court explained at length in its February 26, 2024 Order,
Masuisui’s Section 2255 Motion was dismissed because he failed to establish that
there was any legal or factual merit to his claims that his counsel at sentencing
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rendered constitutionally ineffective assistance and/or that he was entitled to the
retroactive application of the November 2023 amendments to the United States
Sentencing Guidelines. See Dkt. No. 580. Nor does Masuisui’s current motion
suggest that there is any arguable basis in law or fact to alter the Court’s prior
reasoning in this regard. See Dkt. Nos. 581 & 582-1.3 As such, the Court finds
that Masuisui’s appeal of the February 26, 2024 Order is frivolous and certifies
that it is not taken in good faith. See Neitzke, 490 U.S. at 325. His motion to
proceed in forma pauperis on appeal is therefore denied for this additional reason.
II. 	Certificate of Appealability
A petitioner may not appeal a final order in a proceeding under 28 U.S.C.
§ 2255 “unless a circuit justice or judge issues a certificate of appealability.” 28
U.S.C. § 2253(c)(1)(B). To obtain a COA, the petitioner must make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
requires demonstrating that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
3 Masuisui, in fact, appears to incorporate by reference the arguments he raised in his as-
construed motion for reconsideration, see Dkt. No. 581, into his motions for a certificate of
appealability and leave to proceed in forma pauperis on appeal. See Dkt. No. 582-1 at 2
(“Kirisimasi Masuisui, deserves to assert an appeal, that the decision of the District Court is
completely erroneous in that; see: Exhibit-A-(To file Documents of the Enclosed Out of Time.”).
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further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and
citations omitted).
Here, the Court has already denied Masuisui a COA, finding that he failed to
make a substantial showing that he was denied a constitutional right and that
reasonable jurists would not debate this resolution of his claims. See Dkt. No. 580
at 23. Moreover, to the extent that Masuisui seeks reconsideration of this decision,
beyond simply rehashing the same arguments, he fails to provide any support for
the same. See Dkt. No. 581; Dkt. No. 583 (rejecting Masuisui’s arguments in an
as-construed motion for reconsideration); Sch. Dist. No. 1J, Multnomah Cnty.,
Oregon v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (explaining
reconsideration is only “appropriate if the district court (1) is presented with newly
discovered evidence, (2) committed clear error or the initial decision was
manifestly unjust, or (3) if there is an intervening change in controlling law.”). In
other words, the Court does not find that Masuisui has advanced any arguments
that would alter the Court’s previous conclusions as to the reasonable resolution of
his claims. His request for the issuance of a COA is therefore, once again, denied.
CONCLUSION
For the reasons set forth herein, the Court CERTIFIES that Masuisui’s
appeal is not taken in good faith. Accordingly, Masuisui’s application for leave to
proceed in forma pauperis on appeal, Dkt. Nos. 582-1 & 582-2, is DENIED.
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Further, Masuisui’s motion for a Certificate of Appealability, Dkt. No. 582-1, is
also DENIED.
The Clerk is directed to send a copy of this Order to Masuisui and to the
United States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(4).
IT IS SO ORDERED.
DATED: April 22, 2024 at Honolulu, Hawai‘i.
United States of America v. Kirisimasi Masuisui; Case No. 14-cr-00173-DKW-1;
ORDER (1) DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
APPEAL; (2) DENYING A CERTIFICATE OF APPEALABILITY
___________________________
Derrick K. Watson
Chief United States District Judge
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