Anaya v. Hatch et al
MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DENYING 52 MOTION for Leave to Appeal in forma pauperis. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Petitioner Arturo Anaya's Motion for Leave to Proceed in Forma Pauperis on Appeal [Doc. 52 ] is DENIED. IT IS SO ORDERED. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. 16-cv-0331 MV/SMV
TIMOTHY HATCH and ATTORNEY GENERAL
OF THE STATE OF NEW MEXICO,
MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR LEAVE TO PROCEED IFP ON APPEAL
THIS MATTER is before the Court on Petitioner Arturo Anaya’s Motion for Leave to
Proceed in Forma Pauperis on Appeal [Doc. 52], filed on October 30, 2018. The motion fails to
present a reasoned, non-frivolous argument for appeal and, thus, will be denied.
Petitioner, proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2254 on April 22,
2016. [Doc. 1]. The magistrate judge found that the petition contained both exhausted and
unexhausted claims. [Doc. 28] at 7–8. He gave Petitioner an opportunity either to withdraw the
unexhausted claims or dismiss the entire action without prejudice (in order to allow Petitioner to
take his unexhausted claims to state court). Id. at 8–9. Petitioner declined to withdraw his
unexhausted claims, [Doc. 29] at 3, and on recommendation by the magistrate judge, the previous
presiding judge dismissed the petition without prejudice, [Doc. 30] at 12. Final judgment was
entered on November 6, 2017. [Doc. 32].
Petitioner filed his first post-judgment motion on November 16, 2017, asserting that his
state-court conviction should be overturned because he acted in self-defense. [Doc. 33]. The Court
denied the motion on February 23, 2018, because it failed to meet the Rule 59(e) standard for relief
from judgment, and because it failed to address the reason his petition was denied in the first place,
which was lack of exhaustion. [Doc. 36] at 4–6.
Petitioner filed his second and third post-judgment motions on July 31 and August 17,
2018. [Docs. 38, 41]. He continued to argue that his state conviction should be overturned because
he acted in self-defense. Id. The Court denied those motions because they lacked any sound basis
in the controlling facts or law of the case; his case had been properly dismissed without prejudice
for failure to exhaust. [Doc. 43]. Petitioner then filed fourth and fifth post-judgment motions1
[Docs. 45, 47] on August 29 and September 5, 2018, which the Court summarily denied on
October 11, 2018, [Doc. 48].
Petitioner filed his notice of appeal on October 19, 2018. [Doc. 49]. He now moves for
leave to proceed in forma pauperis on appeal. [Doc. 52].
Rule 24 of the Federal Rules of Appellate Procedure states, in pertinent part:
[A] party to a district-court action who desires to appeal in forma
pauperis must file a motion in the district court. The party must
attach an affidavit that:
(A) shows in the detail prescribed by Form 4 of the
Appendix of Forms the party’s inability to pay or to give
security for fees and costs;
In the fourth post-judgment motion, Petitioner asked whether the magistrate judge would be issuing new
recommendations. [Doc. 45]. In the fifth, he argued that his first post-judgment motion [Doc. 33] had been filed
within ten days of entry of final judgment “[and] not 28 days.” [Doc. 47].
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on
Fed. R. App. P. 24(a)(1).
In determining whether to permit a party to proceed in forma pauperis on appeal, the Court
must decide two questions: (1) whether the appeal is taken in good faith; and (2) whether the
appellant has shown a financial inability to pay or give security for fees and costs. See Fed. R.
App. P. 24(a)(1)(A). The burden is on the party seeking in forma pauperis status to show that he
is raising reasoned and nonfrivolous issues on appeal and that he lacks the financial resources to
pay or give security for the fees and costs of appeal. DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991).
With respect to the first question, under Rule 24(a), an appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith. Fed. R. App. P.
24(a)(3)(A). For purposes of Rule 24(a), a good faith appeal is one that presents a “reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on appeal.”
DeBardeleben, 937 F.2d at 505; see Coppedge v. United States, 369 U.S. 438, 445, 447 (1962).
The Court concludes that Petitioner fails to raise any reasoned, nonfrivolous argument in support
of his appeal. The appeal is not taken in good faith. The motion for leave to proceed in forma
pauperis should be denied.
Because the appeal is not taken in good faith, the Court need not pass on Petitioner’s
financial ability or inability to pay or give security for fees or costs on appeal.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Petitioner
Arturo Anaya’s Motion for Leave to Proceed in Forma Pauperis on Appeal [Doc. 52] is DENIED.
IT IS SO ORDERED.
United States District Judge
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