Gonzalez v. Shinn

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Ignacio Ramon Tirado Gonzalez, No. CV-20-01438-PHX-ROS (ESW) 10 Petitioner, ORDER v. David Shinn, et al., 13 Respondents.

15 In July 2020, Petitioner filed a Petition for Writ of Habeas Corpus, an Application to Proceed In Forma Pauperis, and a Motion to Appoint Counsel. (Doc. 2, 3, 5). Shortly after those filings, Petitioner paid the $5.00 filing fee. (Doc. 8). On July 30, 2020, the Court denied as moot the Application to Proceed In Forma Pauperis, denied the Motion to Appoint Counsel, and directed Respondents to respond to the petition. (Doc. 10).

20 A few weeks after the Court’s Order, Petitioner filed three motions: 1) a motion requesting the Court “order the Arizona Department of Corrections to somehow facilitate the creation of pleading documents digitally”; 2) a motion requesting the Court require Respondents provide “Petitioner with copies of all authorities cited in Respondents’ . . .

24 answer”; and 3) a motion for reconsideration of the Court’s Order denying Petitioner’s request for appointment of counsel. (Doc. 13, 14, 15). Respondents opposed the first two motions, arguing they should not be required to facilitate a way for Petitioner to create “documents digitally” nor should they be required to provide Petitioner copies of all legal authorities cited in their response to his petition. As contemplated by Local Rule 7.2(g), Respondents did not respond to the motion for reconsideration regarding the appointment of counsel.

3 Without awaiting a decision on his motion for reconsideration, Petitioner then filed a “Notice of Interlocutory Appeal” and a “Motion for Leave to Proceed in Forma Pauperis on Appeal.” (Doc. 19, 20). Those documents explain Petitioner wishes to appeal the Court’s denial of his request for appointment of counsel. On October 6, 2020, Magistrate Judge Eileen S. Willett issued a Report and Recommendation (“R&R”) recommending Petitioner’s motion to proceed in forma pauperis on appeal be denied. (Doc. 31). The R&R reasoned the denial of counsel in a habeas case is not an immediately appealable order. See, e.g., Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). In addition, the R&R concluded there are no “exceptional circumstances” justifying a certification for interlocutory appeal of the denial of counsel. Thus, because the interlocutory appeal was procedurally improper, the R&R recommended the Court deny Petitioner’s request to proceed in forma pauperis. Petitioner did not file objections to the R&R. On October 7, 2020, the Court denied Petitioner’s motion for reconsideration regarding the appointment of counsel. (Doc. 32).

17 Petitioner’s interlocutory appeal may be barred for the reasons outlined in the R&R but the propriety of that appeal is not squarely at issue. The precise matter presently before this Court is Petitioner’s request to pursue his appeal in forma pauperis. Petitioner completed a financial affidavit stating he has no income and no assets. (Doc. 20 at 7).

21 Therefore, he meets the requirement of being “unable to pay . . . fees.” 28 U.S.C. § 22 1915(a)(1). Beyond being unable to pay the required fees, an appeal in forma pauperis must be taken in good faith. 28 U.S.C. § 1915(a)(3). Here, there is no indication Petitioner’s appeal is being pursued in bad faith. Therefore, the better course is to grant Petitioner leave to proceed in forma pauperis on appeal and allow the appellate court to resolve the appeal.

27 The R&R also construes Petitioner’s other motions as seeking injunctive relief.

28 That is, the R&R describes Petitioner as seeking injunctive relief in the form of requiring || Respondents provide Petitioner with the ability to create digital documents and requiring || Respondents provide Petitioner copies of all legal authorities. (Doc. 31 at 1 n.1). So || construed, those motions will be denied. Petitioner has not established Respondents should 4|| be required to provide him a means to create digital documents nor has Petitioner provided || a legal basis for his request to receive copies of all legal authorities.

6 Accordingly, 7 IT IS ORDERED the Report and Recommendation (Doc. 31) is REJECTED.

8 || Petitioner’s Motion for Leave to Proceed on Appeal In Forma Pauperis (Doc. 20) is GRANTED. The Clerk of Court shall forward a copy of this Order to the Ninth Circuit || Court of Appeals.

11 IT IS FURTHER ORDERED the Motion Ordering Arizona Department of || Corrections to Provide Petitioner Access (Doc. 13) and Motion Ordering Respondents to || Furnish Petitioner with Copies of All Authorities (Doc. 14) are DENIED.

14 Dated this 12th day of November, 2020.

15 fo .

16 f —— 18 Senior United States District Judge -3-