Gallardo v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
FRANK GALLARDO,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
5:22-CV-05007-KES
ORDER GRANTING MOVANT’S
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
Movant, Frank Gallardo, filed a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Docket 1. Judgment was entered against
Gallardo, and he filed a notice of appeal. Dockets 30, 31. The court denied
Gallardo a certificate of appealability. Docket 29 at 6-7. Gallardo now files a
motion for leave to proceed in forma pauperis on appeal and included a
financial affidavit. Docket 32.
The Eighth Circuit historically has looked to district courts to rule on in
forma pauperis motions for appeal and has held that the filing-fee provisions of
the PLRA do not apply to habeas corpus actions. Malave v. Hedrick, 271 F.3d
1139, 1140 (8th Cir. 2001) (per curiam). To determine whether a habeas
petitioner qualifies for in forma pauperis status, the court need only assess (1)
whether the petitioner can afford to pay the full filing fee, and (2) whether the
petitioner’s appeal is taken in “good faith.” 28 U.S. C. § 1915(a)(1), (3).
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2
Based on the information in Gallardo’s financial affidavit, this court finds
that Gallardo has insufficient funds to pay the $505 appellate filing fee. See
Docket 32 at 1-2. His notice of appeal appears to be taken in good faith. Thus,
Gallardo’s motion for leave to proceed in forma pauperis on appeal (Docket 32)
is granted.
IT IS ORDERED:
1. That Gallardo’s motion for leave to appeal in forma pauperis (Docket
32) is granted.
Dated October 28, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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