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Flores v. United States

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 17, 2010

JORGE LUIS FLORES, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER DENYING PETITIONER'S APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES

By Memorandum Decision and Order filed on March 25, 2010, Petitioner Jose Luis Flores' motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 was denied. Judgment for Respondent was entered on March 25, 2010. On April 5, 2010, Petitioner filed a Notice of Appeal. By Order filed on April 13, 2010, a Certificate of Appealability was denied. On May 5, 2003, Petitioner filed an "Application to Proceed Without Prepayment of Fees and Affidavit."

Rule 24(a)(1), Federal Rules of Appellate Procedure, provides:

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 A 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.

Rule 24(a)(4) and (a)(5) provide:

(a)(4) The district clerk must immediately notify the parties and the court of appeals when the district court does any of the following:

(A) denies a motion to proceed on appeal in forma pauperis;

(B) certifies that the appeal is not taken in good faith; or

(C) finds that the party is not otherwise entitled to proceed in forma pauperis.

(a)(5) A party may file a motion to proceed on appeal in forma pauperis in the court of appeals within 30 days after service of the notice prescribed in Rule 24(a)(4). The motion must include a copy of the affidavit filed in the district court and the district court's statement of reasons for its action.

If no affidavit was filed in the district court, the party must include the affidavit prescribed by Rule 24(a)(1).

Here, Petitioner was not required to pay a filing fee to file his Section 2255 motion in the District Court. See Advisory Committee Notes, Rule 3, Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner's application to proceed in forma pauperis establishes that Petitioner is unable to pay or give security for the appellate filing fee. However, Petitioner's application does not state the issues he intends to raise on appeal. Although leave to file an amended application could be ordered, this is not done here. For the reasons that the certificate of appealability was denied, Petitioner has not shown that the appeal is taken in good faith. For the reasons stated, Petitioner's "Application to Proceed Without Prepayment of Fees and Affidavit" is DENIED.

IT IS SO ORDERED.

20100517

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