Ortiz v. Davis

Filing 9

ORDER denying 7 Motion for Leave to Appeal in forma pauperis.(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
MARCOS LOPEZ ORTIZ,
TDCJ #01049113,
Petitioner,
VS.
LORIE DAVIS,

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May 25, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. 3:18-CV-0127

Respondent.
ORDER DENYING MOTION
TO PROCEED ON APPEAL IN FORMA PAUPERIS
On May 16, 2018, this Court dismissed the federal habeas corpus petition filed by
state inmate Marcos Lopez Ortiz for lack of jurisdiction under 28 U.S.C. ' 2244(b) after
finding no indication in the record that the United States Court of Appeals for the Fifth
Circuit had authorized a successive application. Ortiz has filed a notice of appeal (Dkt.
6) and a motion to proceed on appeal in forma pauperis (Dkt. 7). The motion is denied
for reasons explained briefly below.
Ortiz conceded in his petition that he challenges a conviction that was attacked
previously in another federal habeas corpus proceeding and that he had not received
permission from the Fifth Circuit to file an additional petition. As explained in the
dismissal order, this Court lacks jurisdiction over a successive collateral attack in the
absence of express authorization from the Fifth Circuit. To the extent that Ortiz seeks
leave to proceed as a pauper on appeal following this Court’s dismissal for lack of

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jurisdiction, the Court certifies that the appeal is not taken in good faith for purposes of
Rule 24(a)(3) of the Federal Rules of Appellate Procedure.
Therefore, it is ORDERED that the motion for leave to proceed in forma pauperis
(Dkt. 7) is DENIED.
Although this Court has certified that the appeal is not taken in good faith under
Rule 24(a)(3) of the Federal Rules of Appellate Procedure, the applicant may challenge
this finding pursuant to Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997), by filing a
separate motion to proceed in forma pauperis on appeal with the Clerk of Court, United
States Court of Appeals for the Fifth Circuit, within thirty (30) days of the date of this
order. See United States v. Williams, 115 F. App’x 207 (5th Cir. 2004) (reviewing the
dismissal of a successive collateral attack and the district court’s certification that the
appeal was not taken in good faith under Baugh).
The Clerk will provide a copy of this order to the petitioner.
SIGNED at Galveston, Texas, this 25th day of May, 2018.
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George C. Hanks Jr.
United States District Judge

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