Aleman v. Director of CDCR

Filing 31

ORDER DENYING Motion to Proceed in Forma Pauperis on Appeal and Directing Clerk to Serve the Court of Appeals 28 , signed by Magistrate Judge Jennifer L. Thurston on 9/22/16: The Clerk is directed to serve a copy of this order on the Court of Appeals for the Ninth Circuit. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JESUS ALEMAN,
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Petitioner,
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v.
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1:14-cv-00728-LJO-JLT (HC)
ORDER DENYING MOTION TO PROCEED
IN FORMA PAUPERIS ON APPEAL AND
DIRECTING CLERK TO SERVE THE COURT
OF APPEALS
(Doc. 28)

CDCR,

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Respondent.

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On August 4, 2016, the Court entered judgment denying the petition for writ of habeas

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corpus. On September 12, 2016, Petitioner filed a notice of appeal and an application to proceed

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in forma pauperis.

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Pursuant to the Federal Rules of Appellate Procedure,

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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:

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(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 finding; or

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(B) a statute provides otherwise.

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Fed. R.App. P. 24(a)(3).

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Because Petitioner was proceeding in forma pauperis in this action, he is entitled to

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proceed in forma pauperis on appeal unless the Court finds his appeal is not taken in good faith or
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finds that he is not otherwise entitled to proceed in forma pauperis. 28 U.S.C. § 1915(a)(3). “In

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the absence of some evident improper motive, the applicant's good faith is established by the

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presentation of any issue that is not plainly frivolous.” Ellis v. United States, 356 U.S. 674

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(1958). An action is frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke

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v. Williams, 490 U.S. 319, 325 (1989), or where “the result is obvious or the arguments are

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wholly without merit.” Davis v. Graves, 2007 WL 4207804, *1 (E.D. Cal. Nov. 27, 2007) (citing

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Cannon v. Hawaii Corp. (In re Cannon), 796 F.2d 1139, 1144 (9th Cir. 1986).

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Here, Petitioner does not state which issues he wishes to appeal, and the Court can find no
valid ground on which an appeal can be based. The Court thoroughly reviewed Petitioner’s

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claims and found them to be wholly without merit. Consequently, the Court certifies that any

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appeal taken from the Court's denial of the petition would be frivolous and therefore not taken in

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good faith. Fed. R.App. P. 24(a)(3)(A); Ellis, 356 U.S. at 674–75; Hooker v. American Airlines,

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302 F.3d 1091, 1092 (9th Cir. 2002).

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Accordingly, the Court DENIES Petitioner’s motion for leave to appeal in forma

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pauperis. 28 U.S.C. ' 1915(a)(3). The Clerk is directed to serve a copy of this order on the

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Court of Appeals for the Ninth Circuit.

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IT IS SO ORDERED.
Dated:

September 22, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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