Burton v. Cate

Filing 25

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 04/16/12 denying 22 Motion to be billed for appeal filing fees. Also, RECOMMENDING that the motion to vacate judgment 23 be denied. motion to vacate judgment 23 referred to Judge Morrison C. England Jr. Objections due within 21 days.(Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

ERIC WILTON BURTON

11
12
13

Petitioner,

No. CIV S-11-1616 MCE CKD P

vs.
MATTHEW CATE

ORDER AND

14
15

FINDINGS AND RECOMMENDATIONS
Respondents.

16
17

/
Petitioner is a state prisoner proceeding pro se with an application for writ of

18

habeas corpus under 28 U.S.C. § 2254. On October 7, 2011, the court dismissed the petition

19

because it attacked a judgment already on collateral review in the Southern District of California.

20

In so ruling, the court did not grant petitioner his request to proceed in forma pauperis. Petitioner

21

appealed the dismissal to the Ninth Circuit. That court also denied his request to proceed in

22

forma pauperis, and it dismissed his appeal when petitioner failed to pay the filing fee. See

23

Docket No. 21.

24

Petitioner has now filed a motion seeking this court’s assistance in meeting his

25

obligation to pay the filing fees necessary to restore his appeal. The motion is essentially a

26

request for reconsideration of petitioner’s initial motion to proceed in forma pauperis. It is
1

1

without merit and will be denied.

2
3

Petitioner has also moved to vacate the court’s judgment of dismissal. It too is
without merit and should be denied.

4
5

Accordingly, IT IS HEREBY ORDERED that the motion to be billed for appeal
filing fees (Docket No. 22) is denied.

6
7

IT IS RECOMMENDED that the motion to vacate judgment (Docket No. 23) be
denied.

8

These findings and recommendations are submitted to the United States District

9

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

10

one days after being served with these findings and recommendations, petitioner may file written

11

objections with the court. The document should be captioned “Objections to Magistrate Judge’s

12

Findings and Recommendations.” Petitioner is advised that failure to file objections within the

13

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

14

F.2d 1153 (9th Cir. 1991).

15

Dated: April 16, 2012

16

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
2

1
2
3
4

3

5

burt1616.ord

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3