Opinion
No. CIV S-09-2760 WBS CKD P.
October 28, 2011
ORDER
Judgment was entered in this 28 U.S.C. § 2254 action on October 14, 2011. On October 26, 2011, petitioner filed a notice of appeal, a motion for leave to proceed in forma pauperis on appeal and a request for a certificate of appealability.
The Federal Rules of Appellate Procedure provide that party who has been permitted to proceed in forma pauperis in an action before the district court may proceed in forma pauperis on appeal without further authorization unless the district court certifies that the appeal is not taken in good faith or that the party is otherwise not entitled to proceed in forma pauperis. Fed.R.App.P. 24(a)(3). Petitioner was granted permission to proceed in forma pauperis in this action. This court has not certified that petitioner's appeal is not taken in good faith and has not otherwise found that petitioner is not entitled to proceed in forma pauperis on appeal. Accordingly, petitioner's motion for leave to proceed in forma pauperis on appeal will be denied as unnecessary.
As for petitioner's request for a certificate of appealability, a review of the court's docket reveals that the district court judge assigned to this case has already indicated in the October 13, 2011 order denying petitioner's § 2254 petition that a certificate of appealabilty will not issue.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's motion to proceed in forma pauperis on appeal is denied as unnecessary; and
2. Petitioner's request for a certificate of appealability is denied.