Opinion
No. CIV S-09-0107-WBS-TJB.
January 18, 2011
ORDER
Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 2, 2010, an order was issued which adopted the United States Magistrate Judge's Findings and Recommendation in full, denied the petition with prejudice, and declined to issue a certificate of appealability. Judgment was entered the same date. On December 16, 2010, Petitioner filed a notice of appeal, a request for leave to proceed in forma pauperis, and a motion for a certificate of appealability.
Rule 24(a)(1) of the Federal Rules of Appellate Procedure provides that a party to a district court action, who desires to appeal 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.
FED. R. APP. P. 24(a)(1). Petitioner has attached the appropriate application, certificate, and inmate statement report, which demonstrate his inability to pay or to give security for fees and costs. In his December 16, 2010, notice of appeal, Petitioner claimed entitlement to redress and seeks habeas relief. Petitioner has complied with the requirements of FED. R. APP. P. 24(a). His request to proceed in forma pauperis on appeal will be granted.
However, Petitioner's motion for a certificate of appealability will be denied, in that the issuance of a certificate of appealability was declined on December 2, 2010.
For the foregoing reasons, IT IS HEREBY ORDERED:
1. Petitioner's request to proceed in forma pauperis on appeal is GRANTED; and
2. Petitioner's motion for a certificate of appealability is DENIED.
DATED: January 18, 2011