(HC) Simms v. Lynch

Opinion

ROBERT LEE SIMMS, Case No. 2:21-cv-0035-DJC-JDP (P) Petitioner, v. FINDINGS AND RECOMMENDATIONS Respondent. Petitioner, a state prisoner, brought this action under 28 U.S.C. § 2254. ECF No. 1. On October 10, 2023, I recommended that petitioner’s petition be denied on the merits, ECF No. 36, which the district judge adopted, ECF No. 38. The court entered judgment on December 1, 2023. ECF No. 39. On February 24, 2025, petitioner filed an untimely appeal. ECF No. 43. Shortly thereafter, he filed an application to proceed in forma pauperis.1 ECF No. 46. Federal Rule of Appellate Procedure 24(a) provides that a party to a district court action who desires to appeal in forma pauperis must file a motion in the district court with an attached affidavit that shows “in detail” the party’s inability to pay, claims an entitlement to redress, and states the issues the party intends to present on appeal. See Fed. R. App. P. 24(a)(1). If a party was permitted to proceed in forma pauperis in the district court action, that party generally may

1 This matter was referred to the undersigned by the assigned district judge. ECF No. 47. proceed on appeal without further authorization if the appeal is taken in good faith. Fed. R. App. P. 24(a)(3). Since petitioner did not file his petition in forma pauperis and instead paid the filing fee, he must make the requisite showing under Rule 24 to proceed in forma pauperis on appeal. Petitioner’s in forma pauperis affidavit does not state either his claims or the issues he intends to present on appeal, as required by Rule 24(a). See ECF No. 46. Instead, the application solely addresses petitioner’s inability to pay the filing fee. A review of the docket does not reveal what specific claims or issues petitioner intends to present on appeal. Despite petitioner’s inability to pay the filing fee, he has failed to comply with the other requirements of Rule 24(a). Thus, his motion should be denied. Accordingly, it is RECOMMENDED that petitioner’s application to proceed in forma pauperis, ECF No. 46, be DENIED. Should these recommendations be adopted, the Clerk of the Court is directed to notify the U.S. Court of Appeals for the Ninth Circuit that this court certifies, pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), that petitioner’s application to proceed in forma pauperis has been denied and he must therefore seek further authorization from the Court of Appeals pursuant to Federal Rule of Appellate Procedure Rule 24(a)(5) to obtain leave to proceed in forma pauperis. See Fed. R. App. P. 24 Notes of Advisory Committee on Rules – 1967. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 1718 SO ORDERED. ( — Dated: _ March 24, 2025 ssn (ase JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE g il