Filed: Oct. 21, 2015
Latest Update: Oct. 21, 2015
Summary: ORDER STEVE C. JONES , District Judge . This matter appears before the Court for consideration of the Final Report and Recommendation ("R&R") of Magistrate Judge Russell G. Vinyard (Doc. No. [40]), to which no objections have been filed, and on Defendant's Motion for Leave to Appeal in Forma Pauperis (Doc. No. [43]). 1 As an initial matter, after reviewing the R&R, it is received with approval and ADOPTED as the opinion and order of this Court. Because the Court's adoption of the R&R resu
Summary: ORDER STEVE C. JONES , District Judge . This matter appears before the Court for consideration of the Final Report and Recommendation ("R&R") of Magistrate Judge Russell G. Vinyard (Doc. No. [40]), to which no objections have been filed, and on Defendant's Motion for Leave to Appeal in Forma Pauperis (Doc. No. [43]). 1 As an initial matter, after reviewing the R&R, it is received with approval and ADOPTED as the opinion and order of this Court. Because the Court's adoption of the R&R resul..
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ORDER
STEVE C. JONES, District Judge.
This matter appears before the Court for consideration of the Final Report and Recommendation ("R&R") of Magistrate Judge Russell G. Vinyard (Doc. No. [40]), to which no objections have been filed, and on Defendant's Motion for Leave to Appeal in Forma Pauperis (Doc. No. [43]).1 As an initial matter, after reviewing the R&R, it is received with approval and ADOPTED as the opinion and order of this Court. Because the Court's adoption of the R&R results in a final, appealable order, as noted by the Magistrate Judge in the R&R, Defendant is advised that (a) he has the right to an appeal, and (b) with few exceptions, any notice of appeal must be filed within fourteen days, pursuant to Federal Rule of Appellate Procedure 4(b)(1)(A).2 Having adopted the R&R, the Court next addresses Defendant's request for leave to appeal in forma pauperis.
Defendant, Alvaro Ochoa-Molina, has filed a notice of appeal (Doc. No. [42]) and has applied for leave to appeal this case in forma pauperis (Doc. No. [43]). 28 U.S.C. § 1915 and Federal Rule of Appellate Procedure 24 govern the determination of applications to proceed in forma pauperis. Federal Rule of Appellate Procedure 24 provides:
A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless:
(A) the district court — before or after the notice of appeal is filed — certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding; or
(B) a statute provides otherwise.
Fed. R. App. P. 24(a)(3). The Magistrate Judge appointed counsel for Defendant in the district-court action on June 17, 2015, under the Criminal Justice Act. Doc. No. [34]. Defendant was permitted to proceed in forma pauperis for the criminal proceedings and the evidentiary hearing on Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The first requirement to proceed on appeal in forma pauperis is met. In addition, neither of the exceptions set forth in Federal Rule of Appellate Procedure 24(a)(3)(A) and (B) are met in this case. The Court finds that Defendant may proceed on appeal in forma pauperis based on Federal Rule of Appellate Procedure 24(a)(3). Accordingly, to the extent Defendant is required to file a motion for leave to proceed on appeal in forma pauperis, Defendant's application for leave to appeal in forma pauperis (Doc. No. [43]) is GRANTED.
IT IS SO ORDERED.
