Martinez v. Clark ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE 7 JAVIER MARTINEZ, 8 Petitioner, C20-780 TSZ 9 v. MINUTE ORDER 10 LOWELL CLARK, et al., 11 Respondents. 12 The following Minute Order is made by direction of the Court, the Honorable 13 Thomas S. Zilly, United States District Judge: (1) Petitioner Javier Martinez’s Motion for Reconsideration (“Motion”), docket 14 no. 18, is DENIED. Petitioner is correct that 28 U.S.C. § 1915(b) does not apply. See Agyeman v. INS, 296 F.3d 871, 885–86 (9th Cir. 2002). In moving for reconsideration, 15 however, Petitioner still fails to comply with the applicable requirements because he has not submitted an affidavit stating the nature of the appeal and his belief that he is entitled 16 to redress. See 28 U.S.C. § 1915(a)(1); Fed. R. App. P. 24(a)(1). While these requirements may seem technical, Petitioner’s, or his counsel’s, lack of reasonable care in 17 moving to proceed on appeal in forma pauperis demonstrates that reconsideration is not warranted in this case. See LCR 7(h). That is, there has been no “showing of manifest 18 error in the prior ruling or a showing of new facts or legal authority which could not have been brought to [the Court’s] attention earlier without reasonable diligence.” Id. 19 Nor is the Court persuaded that it manifestly erred in certifying that this appeal “is 20 not taken in good faith,” 28 U.S.C. § 1915(a)(3), as there is still little indication that Petitioner will present non-frivolous claims on appeal. See Knapp v. Hogan, 738 F.3d 21 1106, 1110 (9th Cir. 2013) (explaining that “lack of ‘good faith’ in this context has been held to be equivalent to a finding of frivolity”). The Court has reviewed the four issues 22 that Petitioner intends to raise on appeal, and his cited case law. See Motion (docket 1 no. 18 at 2). Nevertheless, it has not identified any authority that lends support to Petitioner’s arguments that the agency gave mere “lip service” to the applicable 2 evidentiary standard; erred in making a dangerousness finding based on the serious nature of Petitioner’s convictions; or violated Petitioner’s due process rights by failing to 3 consider alternatives, or by overlooking or misrepresenting the record. See Report and Recommendation (docket no. 8 at 10–16); Order (docket no. 12 at 3–4). 4 (2) The Clerk is directed to send a copy of this Minute Order to all counsel of 5 record and to the United States Court of Appeals for the Ninth Circuit. Dated this 5th day of February, 2021. 6 7 William M. McCool Clerk 8 s/Gail Glass 9 Deputy Clerk 10 11 12 13 14 15 16 17 18 19 20 21 22