Opinion
Civ. No. 17-1435 (KM)
03-12-2020
DAVID BAYLOR, Petitioner, v. ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondents.
OPINION
KEVIN MCNULTY , U.S.D.J.
Petitioner David Baylor, a prisoner presently incarcerated at New Jersey State Prison in Trenton, New Jersey, brought a petition pursuant to 28 U.S.C. § 2254 for Writ of Habeas Corpus before this Court. (DE 1.) At the time of filing, Mr. Baylor paid the required five-dollar filing fee. On February 5, 2020, the Court issued an Opinion and Order denying the § 2254 petition. (DE 12, 13.) Petitioner thereafter filed an appeal of the denial with the United States Court of Appeals for the Third Circuit. (DE 14.) Petitioner separately filed a motion for leave to proceed in forma pauperis ("IFP") on appeal. (DE 15.)
Pursuant to Federal Rule of Appellate Procedure 24(a)(1), a court may grant a petitioner IFP status on appeal where the petitioner shows, in the detail required by Form 4 of the Appendix of Forms, that he is unable to pay or to give security for the fees and costs on appeal. A petitioner must also state the issues that he intends to present on appeal. See Fed. R. App. P. 24(a)(1). Under Local Appellate Rule 24.1(c), a prisoner seeking IFP status on appeal of the denial of a habeas petition, must file "an affidavit of poverty in the form prescribed by the Federal Rules of Appellate Procedure accompanied by a certified statement of the prison account statement(s) (or institutional equivalent) for the 6 month period preceding the filing of the notice of appeal." L. App. R. 24.1(c).
Paragraph (c) of Local Appellate Rule 24.1 applies to "cases filed in which 28 U.S.C. § 1915(b) does not apply." L. App. R. 24.1(c). The Third Circuit has held that § 1915(b) does not apply to habeas petitions or to appeals of denials of habeas petitions. See Santana v. United States, 98 F.3d 752, 756 (3d Cir. 1996). --------
Here, Mr. Baylor's application for IFP status does not include a certified six-month prison account statement. (DE 15.) Accordingly, Mr. Baylor's motion will be denied without prejudice until such time as he has cured this deficiency.
CONCLUSION
For the reasons set forth above, Mr. Baylor's motion for leave to proceed in forma pauperis on appeal is denied without prejudice. Mr. Baylor may file another application for leave to proceed in forma pauperis on appeal within 30 days of this Opinion and accompanying Order. If Mr. Baylor wishes to refile his application, he must do so by filing a new application accompanied by an affidavit of poverty, a certified six-month prison account statement, and a statement of the issues he intends to raise on appeal. An appropriate Order follows. DATED: March 12, 2020
/s/_________
KEVIN MCNULTY
United States District Judge