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United States of America v. Fernando Lopez-Cuevas

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


May 8, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
FERNANDO LOPEZ-CUEVAS,
DEFENDANT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING PLAINTIFF'S REQUEST TO APPEAL IN FORMA PAUPERIS

Defendant, a federal prisoner proceeding pro se, filed a Notice of Appeal of this Court's November 22, 2011 Order, which denied Defendant's motion under 28 U.S.C. § 2255 to vacate, correct or set aside his sentence. On February 3, 2012, Defendant filed a request to proceed on appeal in forma pauperis. (ECF No. 219.)

A party may seek leave from the district court to proceed in forma pauperis on appeal under Federal Rule of Appellate Procedure 24 and 28 U.S.C. § 1915, when he or she is financially unable to pay the costs associated with the appeal. The requesting party must file a motion in the district court, accompanied by 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).

Defendant filed an affidavit in support of his request to appeal in forma pauperis; however, it is insufficient. Although Defendant declares he is unemployed and has minimal funds, the certified copy of Defendant's institutional account which was filed in support of his request indicates he currently has an account balance of $1,803.87. Therefore, his inability to pay is unclear. Further, Defendant has not stated the issues he intends to present on appeal. See Ontiveros v. Cate, No. 09CV1503 JAH (CAB), 2010 WL 4316942, at *1 (S.D. Cal. Oct. 27, 2010)(denying request to proceed in forma pauperis when "petitioner fail[ed] to detail the issues he intend[ed] to present on appeal as required").

For the stated reasons, Defendant's request to appeal in forma pauperis is denied.

20120508

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