Opinion
CIVIL ACTION NO. 06-17-KKC.
February 1, 2007
OPINION AND ORDER
On December 14, 2006, this Court entered an opinion and order denying Anthony Wayne Wentworth's Petition for a Writ of Habeas Corpus [Rec. No. # 1]. This matter is now before the Court on Wentworth's Motion for Leave to Appeal In Forma Pauperis [Rec. No. 20]. For the following reasons, the Court will deny the motion.
Wentworth has stated in his motion that he is without sufficient financial means to proceed with an appeal. Federal Rule of Appellate Procedure Rule 24(a)(1) provides:
Except as stated in Rule 24(a)(3), a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. The party must attach an affidavit that: (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; (B) claims an entitlement to redress; and (C) states the issues that the party intends to present on appeal.
Form 4 provides that a prisoner "must attach a statement certified by the appropriate institutional officer showing all receipts, expenditures, and balances during the last six months in [the prisoner's] institutional accounts."
Wentworth has failed to attach an affidavit to his motion. The Court has been unable to locate any authority permitting it to grant a party permission to appeal in forma pauperis where the party fails to provide an affidavit that complies with Fed.R.App.P. 24(a)(1). Accordingly, Wentworth's request to proceed on appeal in forma pauperis is DENIED.
Wentworth has also filed a Motion to Appoint Counsel on Appeal [Rec. No. 22]. Since the Court has denied the Motion to Proceed In Forma Pauperis, the Court will likewise deny the Motion to Appoint Counsel.
To the extent Wentworth seeks a certificate of appealability ("COA") pursuant to 28 U.S.C.A. § 2253, such request is denied. To obtain the required certificate of appealability, the applicant must make a "substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253. "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In its Opinion and Order, the Court adopted the Report and Recommendation of the Magistrate Judge recommending that Wentworth's Petition for Writ of Habeas Corpus be denied as to each issued raised. For all the reasons stated in the Report and Recommendation, the Court concludes that reasonable jurists would not find the district court's assessment of the constitutional claims debatable or wrong.
Accordingly, the Court hereby ORDERS as follows:
(1) Wentworth's Motion for Leave to Appeal In Forma Pauperis is DENIED,
(2) Wentworth's Motion to Appoint Counsel on Appeal is DENIED,
(3) a certificate of appealability SHALL NOT BE ISSUED,
(4) this matter is stricken from the active docket of this Court.