Opinion
2:21-cr-00182-DJC-KJN-1
09-26-2023
UNITED STATES OF AMERICA, Plaintiff, v. DORU GABRIEL TRIFU, Defendant.
ORDER
HON. DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE
Movant is a former federal prisoner who has filed a notice of appeal of the Court's order granting Respondent's motion to dismiss and dismissing Movant's 28 U.S.C. § 2255 motion to vacate. (See ECF No. 17.) Movant now seeks leave to proceed in forma pauperis on appeal. (ECF No. 18.)
Movant filed his motion to vacate on July 2, 2022. (ECF No. 2.) The assigned Magistrate Judge issued Findings and Recommendations on July 25, 2023, which dismissed the motion to vacate as the Court lacked jurisdiction over the case as it was a second or successive section 2255 motion and it did not meet the requirements of section 2255(h). (ECF No. 13.) These Findings and Recommendations were subsequently adopted by the Court who also declined to issue a Certificate of Appealability. (ECF No. 15.)
Federal Rule of Appellate Procedure 24 governs applications to proceed in forma pauperis on appeal. Rule 24(a)(3) states that where a party was previously granted in forma pauperis status in the district court action, that party is permitted to proceed in forma pauperis on appeal without further authorization. Here, Movant was previously granted in forma pauperis status on February 24, 2023. (ECF No. 7.) As such, Movant may proceed in forma pauperis on appeal unless “the district court- before or after the notice of appeal is filed-certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding.” Fed. R. App. P. 24(a)(3)(A).
In dismissing Movant's motion to vacate, the Court declined to issue a Certificate of Appealability pursuant to 28 U.S.C. § 2253(c)(2) as Movant had not made a substantial showing of the denial of a constitutional right. (ECF No. 15.) In considering Movant's in forma pauperis status and having denied a Certificate of Appealability, the Court will now certify that the appeal is not taken in good faith. Movant should not be entitled to proceed in forma pauperis on appeal based on Movant's prior in forma pauperis status in the district court action. See Fed. R. App. P. 24(a)(3)(A). Any request to proceed in forma pauperis must be sent directly to the Ninth Circuit Court of Appeals. See Fed. R. App. P. 24(a)(5).
Accordingly, IT IS HEREBY ORDERED that:
1. Movant's Motion to Proceed In Forma Pauperis (ECF No. 18) is DENIED AS MOOT as Movant was previous granted in forma pauperis status by the district court;
2. The Court certifies that the appeal is not taken in good faith; and
3. The Clerk of the Court is directed to notify the U.S. Court of Appeals for the Ninth Circuit that this Court certifies, pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), that Plaintiff's appeal is not taken in good faith, and he must therefore seek further authorization from the Court of Appealspursuant to Federal Rule of Appellate Procedure Rule 24(a)(5) to obtain leave to proceed in forma pauperis.
IT IS SO ORDERED.