United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE
TO PROCEED IFP ON APPEAL
VÁZQUEZ, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Petitioner Arturo Anaya's
Motion for Leave to Proceed in Forma Pauperis on
Appeal [Doc. 52], filed on October 30, 2018. The motion fails
to present a reasoned, non-frivolous argument for appeal and,
thus, will be denied.
proceeding pro se, filed a petition pursuant to 28 U.S.C.
§ 2254 on April 22, 2016. [Doc. 1]. The magistrate judge
found that the petition contained both exhausted and
unexhausted claims. [Doc. 28] at 7-8. He gave Petitioner an
opportunity either to withdraw the unexhausted claims or
dismiss the entire action without prejudice (in order to
allow Petitioner to take his unexhausted claims to state
court). Id. at 8-9. Petitioner declined to withdraw
his unexhausted claims, [Doc. 29] at 3, and on recommendation
by the magistrate judge, the previous presiding judge
dismissed the petition without prejudice, [Doc. 30] at 12.
Final judgment was entered on November 6, 2017. [Doc. 32].
filed his first post-judgment motion on November 16, 2017,
asserting that his state-court conviction should be
overturned because he acted in self-defense. [Doc. 33]. The
Court denied the motion on February 23, 2018, because it
failed to meet the Rule 59(e) standard for relief from
judgment, and because it failed to address the reason his
petition was denied in the first place, which was lack of
exhaustion. [Doc. 36] at 4-6.
filed his second and third post-judgment motions on July 31
and August 17, 2018. [Docs. 38, 41]. He continued to argue
that his state conviction should be overturned because he
acted in self-defense. Id. The Court denied those
motions because they lacked any sound basis in the
controlling facts or law of the case; his case had been
properly dismissed without prejudice for failure to exhaust.
[Doc. 43]. Petitioner then filed fourth and fifth
post-judgment motions[Docs. 45, 47] on August 29 and September
5, 2018, which the Court summarily denied on October 11,
2018, [Doc. 48].
filed his notice of appeal on October 19, 2018. [Doc. 49]. He
now moves for leave to proceed in forma pauperis on
appeal. [Doc. 52].
of the Federal Rules of Appellate Procedure states, in
[A] party to a district-court action who desires to appeal in
forma pauperis must file a motion in the district court. The
party must attach an affidavit that:
(A) shows in the detail prescribed by Form 4 of the Appendix
of Forms the party's inability to pay or to give security
for fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on