     Case: 09-50315     Document: 00511104717          Page: 1    Date Filed: 05/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             May 7, 2010
                                     No. 09-50315
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ADAM EUGENE MARTIN,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:03-CR-250-1


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Adam Eugene Martin, federal prisoner # 39706-180, was convicted by a
jury of eight counts of bank robbery. Martin was sentenced to life imprisonment.
The district court denied Martin’s request for DNA testing. The district court
denied Martin’s motion to proceed in forma pauperis (IFP) on appeal and
certified that his appeal was not taken in good faith. Martin now moves to
proceed IFP in this court.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                No. 09-50315

      A prisoner who contests the district court’s certification decision must
direct his IFP motion solely to the district court’s reasons for the certification
decision. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court may
authorize Martin to proceed IFP on appeal if the appeal presents a nonfrivolous
issue. See 28 U.S.C. § 1915(a)(1); Holmes v. Hardy, 852 F.2d 151, 153 (5th Cir.
1988). The inquiry into Martin’s good faith “is limited to whether the appeal
involves ‘legal points arguable on their merits (and therefore not frivolous).’”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted).
      Section 3600 of Title 18 provides individuals under a federal sentence of
imprisonment with an opportunity to move for post-conviction DNA testing. The
court that entered the defendant’s judgment of conviction is to order DNA
testing of specified evidence if 10 prerequisites are met. See § 3600(a)(1)-(10).
Most relevant to this appeal, the applicant is required to identify a theory of
defense that would establish his “actual innocence,” and the applicant must
show that “[t]he proposed DNA testing of the specific evidence may produce new
material evidence that would . . . raise a reasonable probability that the
applicant did not commit the offense.” § 3600(a)(6), (8).
      Whether DNA testing would produce a “reasonable probability” that
Martin did not commit the robberies, as required under § 3600(a)(8), is a
question of law that is reviewed de novo. See United States v. Fasano, 577 F.3d
572, 575 (5th Cir. 2009). The district court's “underlying fact findings are
reviewed only for clear error.” Id.
      As the district court determined, the evidence of Martin’s guilt is
overwhelming and includes testimony from Martin’s co-defendants regarding
Martin’s participation in the robberies, as well as letters written by Martin that
amount to a confession. Martin makes no attempt to explain how DNA testing
would raise a reasonable probability that he did not commit the bank robbery
offenses, so as to satisfy the requirements of § 3600(a)(8). Martin has not
demonstrated that he has a nonfrivolous issue for appeal, and the record shows

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   Case: 09-50315    Document: 00511104717 Page: 3        Date Filed: 05/07/2010
                                 No. 09-50315

that he has no grounds for obtaining DNA testing. Accordingly, Martin’s IFP
motion is denied, and his appeal is dismissed as frivolous. 5 TH C IR. R. 42.2; see
Baugh, 117 F.3d at 202; Howard, 707 F.2d at 219-20.
      IFP MOTION DENIED; APPEAL DISMISSED AS FRIVOLOUS.




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