Opinion
No. CIV S-01-0591 FCD JFM P.
September 8, 2005
ORDER
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's July 25, 2005 denial of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed.R.App.P. 22(b).
For the reasons set forth in the magistrate judge's June 20, 2005 findings and recommendations, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.
Petitioner has also requested leave to proceed in forma pauperis on appeal. The Federal Rules of Appellate Procedure provide in relevant part as follows:
[A] party who has been permitted to proceed in an action in the district court in forma pauperis . . . may proceed on appeal in forma pauperis without further authorization unless . . . the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed. . . .
Fed.R.App.P. 24(a). Petitioner has been granted leave to proceed in forma pauperis in this court. (Order, filed December 9, 2002.) This court has not certified that plaintiff's appeal is not taken in good faith and has not otherwise found that plaintiff is not entitled to proceed on appeal in forma pauperis. Accordingly, petitioner's request to proceed in forma pauperis on appeal will be denied as unnecessary.
In accordance with the above, IT IS HEREBY ORDERED that:
1. A certificate of appealability should not issue in this action.
2. Petitioner's August 4, 2005 request to proceed in forma pauperis on appeal is denied as unnecessary. See Fed.R.App.P. 24(a).
3. The Clerk of the Court is directed to process petitioner's appeal to the United States Court of Appeals for the Ninth Circuit.