Opinion
No. CIV S-03-2338 JKS KJM P.
May 9, 2008
ORDER
Petitioner is a state prisoner proceeding pro se with this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Judgment was entered in this case on February 1, 2008, but petitioner has never filed a notice of appeal in this court. The court's file reflects a copy of a request for a certificate of appealability, addressed to the Court of Appeals, which petitioner served on March 25 and filed in this court on April 9, 2008.
Petitioner has now filed a request to proceed in forma pauperis on appeal. The court's file reflects that petitioner paid the filing fee in this action and also requested to proceed in forma pauperis.
Rule 24(a) of the Federal Rules of Appellate Procedure provides that a party to a district court action who desires to proceed in forma pauperis on appeal must file a motion in the district court which:
(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 appeal.
In this case, however, petitioner has never filed a notice of appeal. Moreover, even if the court were inclined to treat his request for a certificate of appealability as a notice of appeal, it was filed beyond the thirty day period for filing a notice of appeal. F. R. A. P. 4(a)(1). Accordingly, there appears to be no valid appeal pending to justify a finding that petitioner should proceed in forma pauperis on appeal.
Accordingly, IT IS THEREFORE ORDERED that petitioner's request to proceed in forma pauperis on appeal is denied.