Cotton v. Thaler

Filing 15

ORDER on 7 Appeal of Magistrate Judge Decision to District Court filed by Ricky Cotton. Signed by Judge Xavier Rodriguez. (tm)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION RICKY COTTON, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutional Division, Respondent. § § § § § § § § § § §

Civil Action No. SA-10-CV-87-XR

ORDER On this day, the Court considered Petitioner's "Notice of Appeal on Denial of his Application to Proceed In Forma Pauperis" (Docket Entry No. 7). The Court construes Petitioner's document as a motion to reconsider the Magistrate Judge's order. The motion is DENIED. Statement of the Case Petitioner Ricky Cotton filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Cotton was convicted in the 186th District Court of Bexar County, Texas, of murder and sentenced to twenty-five years in prison. Procedural History Petitioner filed a motion to proceed in forma pauperis when he submitted his petition for a writ of habeas corpus.1 He also moved the Court to order the production of all trial records and transcripts.2 The motions were automatically referred to Magistrate Judge John W. Primomo

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Application to Proceed In Forma Pauperis, Feb. 1, 2010 (Docket Entry No. 1). Mot. for the Production of the Trial Record & Transcripts, Feb. 1, 2010 (Docket Entry No.

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pursuant to Appendix C of the Local Rules for the Western District of Texas and 28 U.S.C. § 636(b)(1). The Magistrate Judge denied petitioner's application to proceed in forma pauperis, noting that the petition had a current balance of $268.69 in his account and receives an average deposit of $29.17 per month, which is sufficient to pay the $5.00 filing fee.3 The Magistrate Judge ordered Respondent to provide the Court with all copies of state court records necessary for a determination of the issues raised in Cotton's petition but denied Petitioner's motion to the extent he requested that Respondent produce the documents to him.4 Cotton filed a "Notice of Appeal on Denial of In Forma Pauperis" in which he asks the District Court to reconsider the Magistrate Judge's order denying his application to proceed in forma pauperis.5 Within the document, Petitioner also objects to the Magistrate Judge's order denying his motion for the state to produce trial documents and transcripts. Legal Standard "A judge of the court may reconsider any pretrial matter . . . where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A). Analysis The Court construes Cotton's "appeal" as a motion for the District Court to reconsider the Magistrate Judge's pretrial orders. Petitioner argues that he has been allowed to proceed in forma pauperis in a previous proceeding before this Court. The docket sheet in Cotton v. Hilbig, No. SA95-CV-147-OLG (W.D. Tex. filed Feb. 17, 1995), indicates that Petitioner did not proceed in forma

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Order, Feb. 22, 2010 (Docket Entry No. 5). Order, Feb. 22, 2010 (Docket Entry No. 4). "Notice of Appeal on Denial of In Forma Pauperis," Mar. 18, 2010 (Docket Entry No. 7). 2

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pauperis; he paid the $5.00 filing fee. In any case, Cotton's financial status when he filed his previous action in 1995 is irrelevant. The Magistrate Judge determined that Cotton had $268.69 in his account and received an average deposit of $29.17 per month, which is enough to afford the $5.00 filing fee. The Magistrate Judge's order on Petitioner's application to proceed in forma pauperis is neither contrary to law nor clearly erroneous. Although Plaintiff references the Magistrate Judge's order denying his motion for the state to produce trial documents and transcripts, he does not argue why this order is clearly erroneous or contrary to law. In any case, the Court has reviewed the Magistrate Judge's order and finds that it should be upheld. Conclusion Petitioner's motion for the District Court to reconsider the Magistrate Judge's pretrial orders is DENIED. It is so ORDERED. SIGNED this 25th day of May, 2010.

_________________________________ XAVIER RODRIGUEZ UNITED STATES DISTRICT JUDGE

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