Opinion
Case No. LA CV 15-01794-VBF
07-06-2016
Juan Pablo Zambrano, Petitioner-Appellant v. Connie Gipson (Warden), Respondent-Appellee
CIVIL MINUTES -- GENERAL PRESENT: John M. Brendel
Courtroom Deputy N/A
Court Reporter ATTORNEYS PRESENT FOR PETITIONER N/A ATTORNEYS PRESENT FOR RESPONDENT N/A PROCEEDINGS (IN CHAMBERS): Order Denying Document #26 (Petitioner's Motion Entitled "Permission to Proceed In Forma Pauperis to Appeal");
Advising Petitioner that He May Ask the U.S. Court of Appeals for IFP Status on Appeal
Proceeding pro se, California state prisoner Juan Pablo Zambrano ("petitioner") filed the petition for a writ of habeas corpus pursuant to 28 U.S.C. section 2254 on September 2, 2015. See Case Management / Electronic Case Filing Document ("Doc") 1. The respondent warden filed an answer and supporting memorandum (Docs 8-9) on December 14, 2015, and lodged paper documents (Doc 10). With an extension of time, petitioner filed replies to the answer (Docs 16 and 17) on February 23, 2016 and March 21, 2016. On April 19, 2016, the Honorable Rozella A. Oliver issued a Report and Recommendation ("R&R") recommending that the Court deny the habeas petition (Doc 19), and petitioner's objections were docketed on May 13, 2016 (Doc 20). On May 26, 2016, this Court issued an Order Overruling Petitioner's Objections, Adopting the R&R, Denying the Habeas Petition, and Dismissing the Action with Prejudice (Doc 23), along with an Order Denying a Certificate of Appealability (Doc 25) and a final judgment (Doc 24).
On June 24, 2016, petitioner electronically filed a document entitled Permission to Proceed in Forma Pauperis On Appeal (Doc 26). "The Court finds this IFP motion to be suitable for resolution without hearing oral argument or requiring the government to file a response." Hugo Ivan Sanchez v. Long, No. LA CV 13-04680-VBF Doc. 51 at 2 (C.D. Cal. May 19, 2016) (Fairbank, J.) (not yet available on WestLaw or Lexis). For the reasons set forth below, the Court will deny petitioner's motion for leave to proceed IFP on appeal.
Even After Appeal is Filed, this Court Has Jurisdiction to Adjudicate Request for IFP Status on Appeal
On June 24, 2016, petitioner filed a notice of appeal and a request for a certificate of appealability from the United States Court of Appeals for the Ninth Circuit (Docs 27 and 28). The Ninth Circuit acknowledged the appeal as number 16-55904 by Notice issued June 28, 2016 (Doc 29). Nonetheless, "[t]he decision to allow an appeal to proceed in forma pauperis remains within the jurisdiction of the trial court after the filing of an appeal." Popescu v. City of San Diego, 2012 WL 37166, *1 (S.D. Cal. Jan. 6, 2012) (McCurine, M.J.) (citing Rains v. Flinn (In re Rains), 428 F.3d 893, 904 (9th Cir. 2005)), app. dismissed, No. 12-55016 (9th Cir. May 23, 2012); see, e.g., Mackenzie v. Hutchens, No. LA CV 12-00584-VBF Doc. ___, 2013 WL 8291424, *2 (C.D. Cal. Nov. 19, 2013) ("On November 4, 2013, the Circuit issued a Referral Notice . . . stating, in pertinent part, 'This matter is referred to the district court for the limited purpose of determining whether in forma pauperis status should continue for this appeal or whether the appeal is frivolous or taken in bad faith.'").
Court Assumes Arguendo that Petitioner Has Satisfied the Indigency Criterion for IFP Status on Appeal
As this Court has explained,
An indigent who cannot afford the expense of pursuing an appeal may file a motion for leave to proceed in forma pauperis. See Fed. R. App. 24(a); 28 U.S.C. § 1915(a)(1). Pursuant to Federal Rule of Appellate Procedure 24(a), "a party to a district-courtaction who desires to file an appeal in forma pauperis must file a motion in the district court." The party must attach an affidavit that (1) shows in detail "the party's inability to pay or give security for fees and costs." (2) "claims an entitlement to redress," and (3) "states the issues that the party intends to present on appeal." Fed. R. App. P. 24(a)(1). * * * McKinley v. Warden, No. LA CV 12-00337, 2013 WL 3872105, *1 (C.D. Cal. Apr. 26, 2013) (Fairbank, J.). In turn, if the party seeking to proceed IFP on appeal is incarcerated as defined by 28 U.S.C. section 1915(h),
in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the . . . notice of appeal, obtained from the appropriate official at each prison at which the prisoner is or was confined.Title 28 U.S.C. section 1915(a)(2).
Petitioner has not filed sufficient material to enable the Court to ascertain whether he meets the indigency criterion of the FRAP 24(a) IFP standard. "For petitioner's sake, however, the Court will assume arguendo, for purposes of this motion, that he has carried his burden of showing that he is indigent and unable to pay the fee charged by the U.S. Court of Appeals for the Ninth Circuit for the filing of a civil appeal." Hugo Ivan Sanchez, LA CV 13-04680-VBF Doc. 51 at 3.
"'Even with a finding of economic eligibility, however, a party may not appeal in forma pauperis if the district court certifies that the appeal is not taken in good faith', United States v. Files, 2006 WL 1525842, *5 (S.D. Ala. May 31, 2006) (citing 28 U.S.C. section 1915(a)(3) and Busch v. County of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999)), and the Court will determine below that this appeal is not taken in good faith.'" Hugo Ivan Sanchez, LA CV 13-04680-VBF Doc. 51 at 3.
Petitioner Has Not Satisfied the Requirement of a Good-Faith / Non-Frivolous Issue for Appeal
"The standard for granting an application for leave to proceed in forma pauperis (IFP) is a lower standard than the standard for certificates of appealability." Moore v. Haas, 2013 WL 5819593, *6 (E.D. Mich. Oct. 29, 2013) (citing Foster v. Ludwick, 208 F. Supp.2d 750, 764 (E.D. Mich. 2002) (citing US v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997))), recon. denied, 2013 WL 6713836 (E.D. Mich. Dec. 20, 2013); see also Gardner v. Pogue, 558 F.3d 548, 550 (9th Cir. 1977) ("To the extent that appellant equates the issuance of a certificate of probable cause with permission to prosecute an appeal in forma pauperis, he has misstated the law. * * * The test for granting a certificate of probable cause is stricter."). Accord Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2000) ("Finfrock . . . has good ground on which to challenge the good faith determinations in his cases. [T]he respective district courts found that an appeal would not be in good faith because no [COA] had been issued. This reason is not enough to explain why the appeal on the merits would not be in good faith, because the standard governing the issuance of a [COA] is not the same as the standard for determining whether an appeal is in good faith. It is more demanding.") (citing, inter alia, Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997)); Carter v. Hodge, 2013 WL 4820622, *4 (N.D. Ill. Sept. 9, 2013) (Leinenweber, J.) ("The standard governing the issuance of a [COA] is higher than the standard for determining whether an appeal is in good faith for purposes of proceeding in forma pauperis on appeal.") (citations omitted).
The certificate of probable cause, or CPC, was the pre-AEDPA predecessor of the COA. See Gonzales v. Thaler, - U.S. -, - n.3, 132 S. Ct. 641, 649 n.3 (2012).
"For this reason, federal courts have sometimes denied a certificate of appealability but still granted leave to proceed in forma pauperis on appeal." Mackenzie, 2013 WL 8291424 at *2 (citing US v. Espinoza, 536 F. App'x 833 (10th Cir. 2013) (denying COA because reasonable jurists could not disagree with district court that section 2255 habeas petition was untimely and that application of AEDPA provision to petitioner did not violate the Suspension Clause, but granting leave to proceed IFP on appeal), cert. denied, 83 U.S.L.W. 3192, - U.S. -, 135 S. Ct. 266 (2014)); see also Cruder v. Klee, 2013 WL 5745123, *10 (E.D. Mich. Oct. 23, 2013) ( petitioner did not meet standard for a COA but did meet the standard to proceed IFP on appeal); Witkins v. Yates, 2013 WL 3148454, *2 (E.D. Cal. June 19, 2013) ("The decision to grant leave to proceed in forma pauperis on appeal is not inconsistent with the district court's decision to decline to issue a [COA] in this action.") (citing Gardner, 558 F.3d at 551); Wise v. Whyte, 2013 WL 123634, *1 (N.D. Cal. Jan. 8, 2013) (granting petitioner leave to proceed IFP on appeal but denying COA); Wallace v. McQuiggin, 2011 WL 4407434, *3 (E.D. Mich. June 30, 2011) (although petitioner had not shown his entitlement to a COA and his claims lacked merit, he was entitled to proceed IFP on appeal because his claims "are not wholly without basis in law and fact, and thus cannot be said to be frivolous"), R&R adopted, 2011 WL 4406356 (E.D. Mich. Sept. 22, 2011); Tate v. Bartow, 2007 WL 1430228, *2 (E.D. Wis. May 15, 2007) (denying COA but granting leave to appeal IFP, court stated, "District courts must not 'apply an inappropriately high standard when making good faith determinations,' and the denial of a [COA] does not necessarily warrant denial of [IFP] status."), COA denied, 2007 WL 1782260 (E.D. Wis. June 13, 2007) (quoting Pate v. Stevens, 163 F.3d 437, 439 (7th Cir. 1998)); Smith v. Kingston, 2006 WL 3207877 (E.D. Wis. Nov. 6, 2006) (same).
"Whereas a [COA] may only be granted if [a habeas] petitioner makes a substantial showing of the denial of a constitutional right, a court may grant IFP status if it finds that an appeal is being taken in good faith." Moore, 2013 WL 5819593 at *6 (citing Ludwick, 208 F. Supp.2d at 764, and 28 U.S.C. § 1915(a)(3) and FED. R. APP. P. 24(a)). "An appeal not taken in good faith is one that is frivolous, meaning the result is obvious or the arguments are wholly without merit", Davis v. Graves, 2007 WL 4207804, *1 (E.D. Cal. Nov. 27, 2007) (citing Cannon v. Hawaii Corp. (In re Cannon), 796 F.2d 1139, 1144 (9th Cir. 1986) and Jaeger v. Canadian Bank, 327 F.3d 743, 746 (9th Cir. 1964)); accord Odell v. Borgan, 2003 WL 23315794, *1 (W.D. Wis. May 20, 2003) (considering request to proceed IFP on appeal and stating, "Certification of bad faith is proper when the issues to be raised on appeal are wholly lacking in legal merit."), and there is no constitutional right to bring a frivolous appeal, see Smith v. Robbins, 528 U.S. 259, 278, 120 S. Ct. 746, 660 (2000) ("[A]lthough . . . indigents generally have a right to counsel on a first appeal as of right, it is equally true that this right does not include the right to bring a frivolous appeal . . . .").
Conversely, when a losing party applies for leave to proceed IFP on appeal, "[t]he applicant's good faith is established by the presentation of any issue that is not plainly frivolous." Ellis v. United States, 356 U.S. 674, 674, 98 S. Ct. 974 (1958) (per curiam) (emphasis added).
Petitioner has failed to demonstrate to this Court that he has presented, or intends to present, any non-frivolous argument on appeal, and therefore he does not meet the standard for IFP status on appeal. His motion for permission to proceed IFP on appeal provides no guidance as to the arguments petitioner intends to present on his pending appeal, nor does his notice of appeal. See generally Davis v. Ghosh, 2015 WL 3396805, *7 (N.D. Ill. May 26, 2015) ("A motion for leave to proceed in forma pauperis on appeal should set forth the issues Plaintiff plans to present on appeal.") (citing Fed. R. App. P. 4(a)(4)), appeal filed, No. 15-2379 (7th Cir. July 1, 2015). To the extent that petitioner intends to assert on appeal the arguments that he made in his pre-R&R habeas briefs (Docs 1 and 16-17) or the arguments that he made in his objections to the R&R (Doc 20), such arguments would be obviously and plainly meritless to the point of frivolousness.
ORDER
Petitioner's Motion for "Permission to Proceed In Forma Pauperis To Appeal" [Doc #26] is DENIED.
This order may not be appealable, but petitioner MAY STILL ASK the United States Court of Appeals for the Ninth Circuit for leave to proceed in forma pauperis on his appeal in this case.
See, e.g., Harris v. Higgins, 536 F. App'x 701, 702 (9th Cir. 2013) ("[T]he district court certified that this appeal is not taken in good faith and has revoked appellant's in forma pauperis status. Our review of the record indicates that appellant is entitled to in forma pauperis status for this appeal.") (citing 28 U.S.C. § 1915(a)); Olivo v. Gregoire, 297 F. App'x 628, 628 n.1 (9th Cir. 2008) (same); Harris v. Perry, 2016 WL 552969, *11 (W.D. Tenn. Feb. 10, 2016) ("[I]f the district court certifies that an appeal would not be taken in good faith, or otherwise denies leave to appeal in forma pauperis, the prisoner must file his motion to proceed in forma pauperis in the appellate court.") (citing Fed. R. App. P. 24(a)(4) and (5)). --------
IT IS SO ORDERED.