Ortiz v. Brazelton

Filing 37

ORDER Directing Clerk of Court to Refund Filing Fee re 35 , signed by Magistrate Judge Sheila K. Oberto on 5/2/17. (Gonzalez, R)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RUBEN ORTIZ, Petitioner, 10 11 12 13 No. 1:13-cv-00006-DAD-SKO HC ORDER DIRECTING CLERK OF COURT TO REFUND FILING FEE v. SCOTT FRAUENHEIM, Warden, (Doc. 35) Respondent. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 In an ex parte motion, Petitioner Ruben Ortiz, by his attorney Philip Brooks, seeks the return of a $505.00 filing fee erroneously paid for Petitioner’s appeal. In a declaration filed in support of the motion, Petitioner’s attorney states that although counsel intended to request waiver of the filing fee based on Petitioner’s having proceeded in forma pauperis before the District Court, he mistakenly submitted the filing fee on Petitioner’s behalf. The rules of appellate procedure provide, in pertinent part: A party who was permitted to proceed in forma pauperis in the district-court action . . . . . may proceed on appeal in forma pauperis without further authorization, unless: (A) 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 filing. F.R.App.P. 24(a)(3). Although the Court declined to issue a certificate of appealability, it did not find that the appeal was taken in bad faith or that Petitioner was otherwise not entitled to proceed in forma 28 1 1 pauperis. In such circumstances, Petitioner may proceed to file his notice of appeal in forma 2 pauperis without the need for a second application to proceed in forma pauperis. Petitioner will 3 then need to seek a certificate of appealability from the circuit court, however, before the appeal 4 may proceed. See, e.g., Greenhill v. United States of America, 2009 WL 1605651 at *2 (E.D. 5 Cal. June 8, 2009) (No. CR-F-94-5020 AWI, CV-F-97-5020 AWI); Booth v. Attorney General, 6 2009 WL 982045 at *1 (E.D. Cal. April 13, 2009) (No. 1:08-cv-01134-SMS HC); Denton v. 7 Garcia, 2008 WL 410600 at *1, n. 1 (E.D. Cal. Feb. 12, 2008) (No. CIV S-03-1558 RRB JFM P). 8 The Clerk of Court is hereby DIRECTED to refund to counsel Petitioner’s filing fee in the 9 amount of $505.00. 10 11 IT IS SO ORDERED. 12 Dated: May 2, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 .

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