Opinion
19-10025-CV-KING
01-20-2021
PIERSON VILLALOBOS, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
PIERSON VILLALOBOS PRO SE
PIERSON VILLALOBOS PRO SE
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
REID MAGISTRATE JUDGE
I. Introduction
This matter is before the Court on Petitioner's pro se Motion for Leave to Appeal in forma pauperis filed pursuant to 28 U.S.C. § 1915. [ECF No. 27]. This cause has been referred to the Undersigned for consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B). [ECF No. 29]. Upon review of the Motion and the record in this case, the Undersigned RECOMMENDS that the Motion be DENIED, as further discussed below.
II. Discussion
A. Factual and Procedural History
Petitioner brought this federal habeas case challenging his state court conviction and sentence on February 15, 2019. [ECF No. 1]. When Petitioner originally filed the case, he did not pay the $5.00 filing fee required by 28 U.S.C. § 1914, nor did he file for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and S.D. Fla. L.R. 88.2(b), so the Court Ordered him to do so before his case may proceed further. [ECF No. 5]. Petitioner then requested filed for leave to proceed in forma pauperis [ECF No. 8] but was denied because a review of Petitioner's six-month account statement showed that he was not completely indigent and that he had sufficient funds in his inmate account to pay the $5 filing fee. [ECF No. 9]. Petitioner then paid the $5 filing fee. [ECF No. 10].
After receiving Petitioner's filing fee, the Undersigned issued a Report and Recommendation, recommending that the Petition be denied on the merits and that a certificate of appealability be denied, because reasonable jurists would not find the assessment of Petitioner's claims to be debatable or wrong. [ECF No. 19]. Petitioner filed Objections [ECF No. 22], and the Court affirmed and adopted the Report over Petitioner's objections. [ECF No. 23]. Petitioner then filed a Notice of Appeal [ECF No. 25], and the instant Motion for Leave to Appeal in forma pauperis that is now before the Court. [ECF No. 27].
B. Standard of Review
Title 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure 24(a) govern the determination of applications to proceed with an appeal in forma pauperis. Before a district court may authorize the commencement of appeal of an action without prepayment of filing fees, the applicant must provide an affidavit that includes a statement of “the nature of the action, defense or appeal and the affiant's belief that the person is entitled to redress.” 28 U.S.C. § 1915(a)(1). In addition, S.D. Fla. L.R. 88.2(b) requires, among other things, the applicant to “under oath, set forth information which establishes that he or she is unable to pay the fees and costs of the proceedings.”
Next, even if an applicant qualifies financially, they may not take an appeal in forma pauperis in the appellate court if the district court “certifies in writing that it is not taken in good faith.” 28 U.S.C. §1915(a)(3); see also Fed. R. App. P. 24(a) (providing that a party may not proceed on appeal in forma pauperis if “the district court-before or after the notice of appeal is filed-certifies that the appeal is not taken in good faith.”). An appeal is taken in good faith under § 1915(a)(3) if a litigant seeks appellate review of any issue that is not frivolous. See Coppedge v. United States, 369 U.S. 438, 445 (1962). “Good faith” within the meaning of § 1915 must be judged by an objective, not a subjective, standard. See Id.
C. Petitioner's Motion to Appeal in forma pauperis Should be Denied
Petitioner's Motion should be denied because it does not comply with the filing requirements of 28 U.S.C. § 1915(a) and Fed. R. App. P. 24(a) and because Petitioner has not met his burden of showing a non-frivolous issue for appeal. Petitioner has failed to provide: (1) an affidavit containing “the nature of the action, defense or appeal and the affiant's belief that the person is entitled to redress, ” as required by 28 U.S.C. § 1915(a)(1) and Fed. R. App. P. 24(a)(1); and (2) has failed to “set forth information which establishes that he or she is unable to pay the fees and costs of the proceedings” which must also be done “under oath, ” as required by S.D. Fla. L.R. 88.2(b). While it is true that Petitioner did file a six-month inmate account statement as required by 28 U.S.C. § 1915(a)(2) [ECF No. 31], that is not enough, and all requirements must be met to establish entitlement to proceed in forma pauperis.
Petitioner used a form application that does contain such a statement; however, Petitioner did not sign that portion of the application and only placed an “x” on the signature line. This mark does not appear to be a signature and does not match Petitioner's other signatures filed in this case. However, even if it did qualify as a signature, Petitioner's Motion should still be denied for the other deficiencies identified in this Report and Recommendation.
In addition to these technical filing deficiencies, Petitioner's Motion should also be denied because the appeal is not sought in good faith. Petitioner does not identify any issueything, let alone a non-frivolous issue to appeal, and it is Petitioner's burden to do so. Even liberally construing the Motion as Petitioner seeking to appeal the merits denial of his Petition, there is no basis for such an appeal for the same reasons that a certificate of appealability was denied, despite the slightly different standards of evaluating each. Accordingly, without more, Petitioner fails to meet his burden and his Motion should be denied.
III. Recommendations
Based on the above, it is RECOMMENDED that Petitioner's Motion for Leave to Appeal in forma pauperis [ECF No. 27] be DENIED.
Objections to this Report may be filed with the District Judge within fourteen days of receipt of a copy of the Report. Failure to timely file objections will bar a de novo determination by the District Judge of anything in this recommendation and shall constitute a waiver of a party's “right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions.” See 11th Cir. R 3-1 (2016); see also 28 U.S.C. § 636(b)(1)(C); Harrigan v. Metro-Dade Police Dep't Station #4, 977 F.3d 1185, 1191-92 (11th Cir. 2020).