Opinion
No. 1:16-cv-01826-DAD-SAB-HC
10-05-2017
TYRONE JUSTIN COWAN, Petitioner, v. DEBBIE ASUNCION, Respondent.
ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY AND GRANTING MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
(Doc. Nos. 22, 23)
Petitioner is a state prisoner who proceeded pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On August 23, 2017, the court adopted the magistrate judge's findings and recommendation, denied the petition, and declined to issue a certificate of appealability. (Doc No. 19.) On September 21, 2017, petitioner filed a notice of appeal along with a motion for certificate of appealability and a motion to proceed in forma pauperis on appeal. (Doc. Nos. 21-23.)
In the August 23, 2017 order denying the petition for writ of habeas corpus, the court found that petitioner had not made the required showing under 28 U.S.C. § 2253(c). (Doc. No. 19 at 2.) The court previously declined to issue a certificate of appealability. Recognizing this, petitioner does not ask the district court to issue a certificate of appealability itself, but rather to "forward this motion to the Ninth Circuit Court of Appeals." (Doc. No. 22 at 4.) A habeas petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals directly. See 28 U.S.C. § 2253(c)(1) ("Unless a circuit justice or judge issues a certificate of appealability. . ."); Lambright v. Stewart, 220 F.3d 1022, 1024 (9th Cir. 2000) (noting the district court had denied a certificate of appealability, but the circuit court had granted one). Therefore, petitioner should direct his request to the Clerk of the Court for the Ninth Circuit Court of Appeals. The motion for a certificate of appealability is denied without prejudice to the petitioner submitting his request to the Ninth Circuit Court of Appeals.
Petitioner paid the filing fee for the instant habeas action, but now moves to proceed in forma pauperis on appeal. Rule 24(a) of the Federal Rules of Appellate Procedure provides that:
[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:
Fed. R. App. P. 24(a)(1).(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security or fees and costs;
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.
Here, petitioner has demonstrated his inability to pay. (See Doc. No. 23.) In his concurrently filed motion for a certificate of appealability, petitioner claims entitlement to redress and states the issues he seeks to raise on appeal. Accordingly, the court will grant the motion to proceed in forma pauperis on appeal.
Given the foregoing:
1. Petitioner's motion for a certificate of appealability (Doc. No. 22) is denied; and
2. Petitioner's motion to proceed in forma pauperis on appeal (Doc. No. 23) is granted. IT IS SO ORDERED.
Dated: October 5 , 2017
/s/_________
UNITED STATES DISTRICT JUDGE