Opinion
No. CIV S-11-1811 KJM-JFM
07-24-2012
FRED R. JUAREZ, Petitioner, v. S.M. SALINAS, Defendant.
ORDER
Petitioner, a state prisoner proceeding pro se seeking a writ of habeas corpus in accordance with 28 U.S.C. § 2254, has timely filed a notice of appeal from the order dated July 6, 2012, denying plaintiff's petition.
Rule 24(a)(1) 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;FED. R. APP. P. 24(a)(1). Plaintiff has complied with Rule 24(a)(1).
(B) claims an entitlement to redress; and
(C) states the issues that the party intends to present on appeal.
In addition, under 28 U.S.C. § 1915(a)(3) a court may deny a request to proceed in forma pauperis on appeal if it determines that the appeal is not taken in good faith. The good faith requirement is satisfied if the plaintiff seeks review of any issue that is "not frivolous." Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir.1977) (quoting Coppedge v. United States, 369 U.S. 438, 445 (1962)). An action is "frivolous" for purposes of section 1915 if it lacks any arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 327(1989); Franklin v. Murphy, 745 F.2d 1221, 1225 (9th Cir.1984). This action is frivolous for the reasons set forth in the findings and recommendations (ECF 7), as adopted by the undersigned (ECF 9).
IT IS THEREFORE ORDERED that:
1. Plaintiff's request to proceed in forma pauperis on appeal (ECF 12) is denied; and
2. Plaintiff's request for a certificate of appealability (ECF 12) is denied for the reasons set forth in the findings and recommendations (ECF 7).
______________________________
UNITED STATES DISTRICT JUDGE