Opinion
2:21-CV-00940-TL
03-27-2023
ALAN JUSTIN SMITH, Petitioner, v. JEFFREY UTTECHT, Respondent.
ORDER GRANTING IN FORMA PAUPERIS ON APPEAL, DENYING TIME EXTENSION, AND DENYING CERTIFICATE OF APPEALABILITY
Tana Lin, United States District Judge
This matter is before the Court on petitioner's Motion for Leave to Appeal In Forma Pauperis (Dkt. No. 59), Motion for Extension of Time to File Amended Motion for Certificate of Appealability (Dkt. No. 63), and Amended Motion for Certificate of Appealability (Dkt. No. 65). petitioner was not granted in forma pauperis (“IFP”) status in this Court, but instead proceeded with his petition after paying the required filing fee. See July 15, 2021, Docket Entry.
Petitioner now requests leave to appeal without prepaying the required filing fees in the appellate court, in other words Petitioner seeks IFP status on appeal. Dkt. No. 59. Pursuant to FRAP 24, the Court GRANTS Petitioner's request for IFP status on appeal. See also 28 U.S.C. § 1915(a)(1).
Plaintiff initially moved for a certificate of appealability on January 18, 2023. Dkt. No. 57. Before the Court could rule on the motion, Plaintiff moved for a continuance, seeking more time to prepare and file an amended motion. Dkt. No. 61. The Court granted Petitioner's request for continuance, struck the previous motion for certificate of appealability from the docket, and ordered Petitioner to file his amended motion by February 8, 2023. Dkt. No. 62. On February 7, the day before his amended motion was due, Petitioner asked the Court to extend the filing deadline for the amended petition to February 22, 2023. Dkt. No. 63. Despite claiming that he would not be able to meet the deadline set by the Court, Petitioner filed his amended motion the following day, on the original February 8 deadline. Dkt. No. 65. Since Petitioner was able to file a timely amended motion, the Court DENIES as moot Petitioner's requested extension.
Finally, in his amended motion, Plaintiff requests a certificate of appealability from this Court's final order on his Petition for a Writ of Habeas Corpus. “A certificate of appealability may issue . . . only if the [petitioner] has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner can satisfy this standard “by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner has had several opportunities throughout the pendency of his petition to establish a substantial showing of the denial of a constitutional right. Petitioner's amended motion appears to make the same substantive arguments, based on the same factual and legal assertions, that have been repeatedly rejected by this Court. See Dkt. Nos. 51, 56. The Court therefore DENIES Mr. Smith's request for a certificate of appealability.