Opinion
No. CIV S-07-1287-CMK-P.
May 22, 2008
ORDER
Petitioner, a state prisoner proceeding with retained counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court are petitioner's request for a certificate of appealability (Doc. 27) and request for leave to proceed in forma pauperis on appeal (Doc 28).
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's denial of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue.See 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. See Fed.R.App.P. 22(b). For the reasons set forth in the court's April 22, 2008, memorandum opinion and order, petitioner has not made a substantial showing of the denial of a constitutional right.
As to petitioner's request for leave to proceed in forma pauperis, petitioner has not, however, submitted a "certification from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution" as required by Rule 3(a)(2) of the Federal Rules Governing Section 2254 Cases. This requirement may be satisfied by having the appropriate prison official complete the certificate portion of the form application or by submitting a certified copy of petitioner's prison trust account statement. Because petitioner has not submitted the required certification, the request will be denied without prejudice to renewal in the Ninth Circuit Court of Appeals.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's request for a certificate of appealability (Doc. 27) is denied; and
2. Petitioner's request for leave to proceed in forma pauperis on appeal (Doc. 28) is denied without prejudice.