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Mitchell v. U.S., 2:12-cr-00401-KJM. (2018)

Court: District Court, E.D. California Number: infdco20181220933 Visitors: 10
Filed: Dec. 19, 2018
Latest Update: Dec. 19, 2018
Summary: ORDER KIMBERLY J. MUELLER , District Judge . On November 16, 2016, this court sentenced Albert Lee Mitchell to 120 months imprisonment for knowingly receiving child pornography in violation of 18 U.S.C. 2252(a)(2). ECF No. 197, 201. Mitchell, through appointed counsel, appealed his conviction. ECF No. 200. The appellate court affirmed his conviction, and his appeal was denied. ECF No. 210. Now, proceeding pro se, Mitchell moves for in forma pauperis ("IFP") status, seeking waiver of prep
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ORDER

On November 16, 2016, this court sentenced Albert Lee Mitchell to 120 months imprisonment for knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2). ECF No. 197, 201. Mitchell, through appointed counsel, appealed his conviction. ECF No. 200. The appellate court affirmed his conviction, and his appeal was denied. ECF No. 210. Now, proceeding pro se, Mitchell moves for in forma pauperis ("IFP") status, seeking waiver of prepayment of fees associated with his "forthcoming Section 2255 motion." At this juncture, Mitchell's request is DENIED as premature.

Pursuant to Local Rule 190(d), motions for relief under 28 U.S.C. § 2255 are assigned, if possible, to the sentencing judge. As such, these motions are filed under the same case number, caption and docket as the underlying criminal matter, which obviates the need to impose additional filing fees customary with a new case filing or appeal. Moreover, even if a § 2255 motion did require payment of fees, Mitchell has failed to provide adequate documentary support to justify IFP approval under 28 U.S.C. § 1915(a). See § 1915(a) (court may authorize action or proceeding without prepayment of fees "by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor."). The denial of Mitchell's motion here does not impede his ability to file his intended § 2255 motion, nor does it affect any future motions to proceed IFP; it merely denies his current IFP motion as procedurally premature.

Accordingly, Mitchell's motion to proceed IFP, ECF No. 212, is DENIED.

IT IS SO ORDERED.

Source:  Leagle

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