The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER GRANTING MOTION FOR LEAVE TO PROCEED IFP [DOC. 73] AND DENYING MOTION FOR CERTIFICATE OF APPEALABILITY [DOC. 72]
On February 23, 2011, Petitioner Joel Fajardo-Meza, a federal prisoner proceeding pro se, filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (the "Petition"). Respondent United States of America opposed, and on February 15, 2012, this Court denied the Petition.
Petitioner now requests that the Court issue a certificate of appealability ("COA"). Petitioner also seeks leave to proceed in forma pauperis ("IFP") on appeal. For the reasons stated below, the Court GRANTS Petitioner's request to proceed IFP on appeal (Doc. 73), and DENIES Petitioner's request for a COA (Doc. 72).
On August 23, 2009, Petitioner agreed to plead guilty to Count 1 of the Indictment, conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841(a) and 846. (See Plea Agreement [Doc. 26], ¶ I.A.) Under the terms of the Plea Agreement, Petitioner agreed to waive his right to appeal or collaterally attack his sentence, "unless the Court impose[d] a custodial sentence greater than the high end of the guideline range (or statutory mandatory minimum term, if applicable) recommended by the Government pursuant to this agreement at the time of sentencing." (Id. ¶ XI.)
On October 13, 2009, Petitioner pled guilty. (See 10/13/09 Minute Entry [Doc. 25].) On April 20, 2010, this Court sentenced Petitioner to 90 months' imprisonment followed by five years of supervised release. (See 4/20/10 Minute Entry [Doc. 41].)
On February 23, 2011, Petitioner filed the Petition. Respondent opposed arguing, among other things, that Petitioner waived his right to collaterally attack his sentence.
On August 24, 2011, Petitioner filed a motion for extension of time to respond to Respondent's opposition. (See Mt. for Extension of Time [Doc. 67].) However, on November 1, 2011, Petitioner filed a notice stating that he did not intend to respond to Respondent's opposition, and urging the Court to issue a ruling on his Petition. (See Notice [Doc. 69], at 1.) On February 15, 2012, this Court issued an order denying the Petition. (See 2/15/12 Order [Doc. 70].
A party seeking to proceed IFP on appeal must file a motion in the district court. See Fed R. App. P. 24(a)(1). The determination of whether a plaintiff is indigent, and thus unable to pay the filing fee falls within the district court's discretion. California Men's Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 1991), reversed on other grounds, 506 U.S. 194 (1993) ("Section 1915 typically requires the reviewing court to exercise its sound discretion in determining whether the affiant has satisfied the statute's requirement of indigency."). It is well-settled that a party need not be completely destitute to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339-40 (1948). To satisfy the requirements of IFP status, "an affidavit [of poverty] is sufficient which states that one cannot because of his poverty pay or give security for costs . . . and still be able to provide himself and dependents with the necessities of life." Id. at 339. At the same time, however, "the same even-handed care must be employed to assure that federal funds are not squandered to underwrite, at public expense, . . . the remonstrances of a suitor who is financially able, in whole or in material part, to pull his own oar." Temple v. Ellerthorpe, 586 F.Supp. 848, 850 (D.R.I. 1984).
Having read and considered the papers submitted, the Court finds that Petitioner has demonstrated that he is unable to pay the fees or post securities required to pursue his appeal. According to his declaration, Petitioner receives approximately $100 a month in support from family. (Attached Supporting Dec. [Doc. 73], ¶ 2.) He receives no other income. For these reasons, the Court GRANTS Petitioner's motion to proceed IFP on appeal.*fn1 (Doc. 73.)
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 State. 1214 (1996) ("AEDPA"), a federal prisoner may not appeal the denial of a section 2255 habeas petition unless he obtains a COA from a district or circuit judge. 28 U.S.C. § 2255 (c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue certificates of appealability under the AEDPA). In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. Asrar, 116 F.3d at 1270. A court may issue a COA ...