Barry v. Washington State Department of Corrections

Opinion

1 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 3 AT TACOMA 4 ROBERT EUGENE BARRY, CASE NO. C18-6003 BHS 5 Petitioner, ORDER GRANTING v. PETITIONER’S MOTION TO 6 PROCEED IN FORMA PAUPERIS STATE DEPARTMENT OF ON APPEAL 7 CORRECTIONS, et al., 8 Respondents. 9

10 This matter comes before the Court on Petitioner Robert Eugene Barry’s (“Barry”) 11 motion for leave to proceed in forma pauperis (“IFP”) on appeal. Dkt. 29. The Court has 12 considered the pleadings filed in support of the motion and the remainder of the file and 13 hereby grants the motion for the reasons stated herein. 14 On December 5, 2018, Barry filed a petition for writ of habeas corpus. Dkt. 1. On 15 October 7, 2019, the Honorable J. Richard Creatura, United States Magistrate Judge, 16 issued a Report and Recommendation (“R&R”) recommending that the Court dismiss 17 Barry’s petition as time-barred. Dkt. 24. Judge Creatura concluded that even if Barry was 18 granted equitable tolling for the period of his prior attorney’s malpractice, he failed to 19 establish an entitlement to either statutory or equitable tolling from the time he became 20 aware of that malpractice, June 22, 2017, to the date he filed his federal habeas petition, 21 December 5, 2018. Id. On October 21, 2019, Barry filed objections. Dkt. 25. 22 1 On January 24, 2020, the Court adopted the R&R in part and adopted it as 2 modified in part, concluding that “Barry is not entitled to equitable tolling from June 22,

3 2017 to December 5, 2018 while he pursued state court relief because there was no 4 impediment to his timely filing of this federal petition.” Dkt. 27 at 3. However, the Court 5 also concluded that Barry was entitled to a certificate of appealability on the issue of 6 equitable tolling for the period of time after he became aware of his attorney’s 7 misconduct because reasonable jurists have and could disagree on the issue. Id. (citing 8 Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The Court entered judgment the same

9 day. Dkt. 28. 10 On February 21, 2020, Barry appealed to the Ninth Circuit Court of Appeals, Dkt. 11 30, and filed a motion for leave to proceed IFP, Dkt. 29. 12 The district court may permit indigent litigants to proceed IFP upon completion of 13 a proper affidavit of indigency. See 28 U.S.C. § 1915(a). “[A]n appeal may not be taken

14 in forma pauperis if the trial court certifies in writing that it is not taken in good faith.” 15 28 U.S.C. § 1915(a)(3). The determination whether a party can proceed IFP is a “matter 16 within the discretion of the trial court.” Weller v. Dickinson, 314 F.2d 598, 600 (9th Cir. 17 1963). 18 In this case, Barry has met the requirements to proceed IFP. First, Barry submitted

19 an affidavit of indigency listing his monthly income and expenses. Although Barry does 20 own a home and receives Social Security in an amount indicating some ability to pay a 21 filing fee on appeal, he explains that he is retired, and that his expenses largely subsume 22 any income he receives. Moreover, he states that he has recently been diagnosed with 1 cancer and therefore must maintain some of his income to pay future medical costs. 2 Under these circumstances, Barry has shown that he is unable to pay the filing fee

3 required for appeal. 4 Second, Barry has shown that his appeal is taken in good faith. The Court has 5 found that reasonable jurists could disagree on the equitable tolling issue Barry presented 6 in his habeas petition and granted him a certificate of appealability on that issue. Because 7 Barry is indigent and presents a colorable issue for appeal, the Court concludes that this is 8 an appropriate case to exercise its discretion and grant his motion.

9 Therefore, it is hereby ORDERED that Barry’s motion for leave to proceed IFP 10 on appeal, Dkt. 29, is GRANTED. 11 Dated this 26th day of February, 2020. A 12 13 BENJAMIN H. SETTLE 14 United States District Judge

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