Gutierrez v. Sisto, et al

Filing 28

ORDER signed by Magistrate Judge Kendall J. Newman on 5/3/2011 ORDERING ptnr to submit, w/in 14 days, an affidavit to proceed ifp or the $455 appellate filing fee; and the clerk to send ptnr an ifp form.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HEVERD GUTIERREZ,

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Petitioner,

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No. 2:09-cv-0329 GEB KJN P

vs.
D.K. SISTO, Warden,
Respondent.

ORDER
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Petitioner is a state prisoner proceeding without counsel, with an appeal from the

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district court’s order denying the petition for writ of habeas corpus. On April 20, 2011, petitioner

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filed an objection to the bill for the appellate court filing fee, claiming the district court “issued

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petitioner [in] forma pauperis status due to [petitioner] paying the filing fee.” (Dkt. No. 26 at 1.)

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It appears that petitioner believes that payment of the initial filing fee in the district court also

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covers the appeal of his case to the Court of Appeals for the Ninth Circuit. Petitioner is

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mistaken. First, review of the instant docket reveals petitioner has not previously been granted

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leave to proceed in forma pauperis. Second, Rule 5(d) of the Federal Rules of Appellate

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Procedure requires the district court to collect, and parties to pay to the district court, the required

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fees for pursuing an appeal in an appellate court. Id.

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Litigants who file an appeal in the Ninth Circuit are required to pay the $455.00
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filing fee to the district court or risk dismissal of the appeal. However, if petitioner qualifies to

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proceed in forma pauperis, petitioner may seek waiver of the filing fee. On the present record,

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the court cannot discern whether petitioner is entitled to proceed in forma pauperis. See 28

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U.S.C. §§ 1914(a); 1915(a). Therefore, petitioner will be provided the opportunity to either

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submit the appropriate affidavit in support of a request to proceed in forma pauperis or submit

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the appropriate filing fee. Petitioner is cautioned that failure to timely comply with this order

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may result in the dismissal of his appeal.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner shall submit, within fourteen days from the date of this order, an

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affidavit in support of his request to proceed in forma pauperis or the $455 appellate filing fee;

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petitioner’s failure to comply with this order will result in the dismissal of the appeal; and

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2. The Clerk of the Court is directed to send petitioner a copy of the in forma

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pauperis form used by this district.

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DATED: May 3, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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guti0329.ifp

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