Opinion
09-20005-10-DDC
10-07-2021
UNITED STATES OF AMERICA, Plaintiff, v. HUGO CHAVEZ-CADENAS (10), Defendant.
MEMORANDUM AND ORDER
Daniel D. Crabtree United States District Judge
This matter comes before the court on defendant Hugo Chavez-Cadenas's pro se Motion for Leave to Appeal In Forma Pauperis (Doc. 1352). This court denied Mr. Chavez-Cadenas's Motion for Compassionate Release (Doc. 1337) on August 24, 2021. Doc. 1348 at 10. Mr. Chavez-Cadenas seeks to appeal that decision in forma pauperis to the Tenth Circuit. Doc. 1349 at 1. For the following reasons, the court denies Mr. Chavez-Cadenas's motion as moot.
Because Mr. Chavez-Cadenas filed the current motion pro se, the court construes his filings liberally and holds them to “a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court doesn't become his advocate. Id.
“If a person for whom counsel is appointed under [the Criminal Justice Act, or “CJA”] appeals to an appellate court . . . he may do so without prepayment of fees and costs or security therefor[e] and without filing the affidavit required by section 1915(a) of title 28.” 18 U.S.C. § 3006A(d)(7); see also Fed. R. App. P. 24(a)(3) (“A party . . . 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[.]”). Previously, this court appointed counsel for Mr. Chavez-Cadenas under the CJA. See Docs. 255, 289. The court notes that appointment was in 2009. But Mr. Chavez-Cadenas has provided a new financial affidavit showing that he meets the requirements to proceed in forma pauperis. See Docs. 1352-1, 1352-2. So, Mr. Chavez-Cadenas may appeal this action in forma pauperis without any further authorization from this court. See United States v. Tyner, 342 Fed.Appx. 415, 418 (10th Cir. 2009) (denying motion to proceed in forma pauperis as moot because defendant's “ifp status carrie[d] over” from when he “was represented by CJA counsel in the original criminal proceedings and allowed to proceed in forma pauperis in a prior appeal” (citing Fed. R. App. P. 24(a)(3)) (emphasis omitted)); see also United States v. Wallace, No. 2:14-cr-218-CW, 2018 WL 3675246, at *1 (D. Utah Aug. 2, 2018) (granting defendant's motion to proceed in forma pauperis on post-conviction motion where the court previously determined he was eligible for CJA appointment in his criminal case and defendant filed a new affidavit showing he met the requirements to proceed in forma pauperis).
Fed. R. App. P. 24(a)(3)(A) permits a petitioner to “proceed on appeal in forma pauperis without further authorization, unless” the district court “certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis[.]” The court doesn't find that Mr. Chavez-Cadenas's appeal manifests bad faith.
The court thus denies Mr. Chavez-Cadenas's motion as moot. The Clerk of the Court is directed to forward a copy of this Order to the Clerk of the Tenth Circuit.
IT IS THEREFORE ORDERED THAT defendant Hugo Chavez-Cadenas's Motion for Leave to Appeal In Forma Pauperis (Doc. 1352) is denied as moot.
IT IS SO ORDERED.