Cowan v. Asuncion

Filing 25

ORDER DENYING 22 Motion for Certificate of Appealability and GRANTING 23 Motion to Proceed IFP on Appeal signed by District Judge Dale A. Drozd on 10/5/2017. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE JUSTIN COWAN, 12 Petitioner, 13 14 15 v. No. 1:16-cv-01826-DAD-SAB-HC ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY AND GRANTING MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL DEBBIE ASUNCION, (Doc. Nos. 22, 23) Respondent. 16 17 Petitioner is a state prisoner who proceeded pro se with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On August 23, 2017, the court adopted the 19 magistrate judge’s findings and recommendation, denied the petition, and declined to issue a 20 certificate of appealability. (Doc No. 19.) On September 21, 2017, petitioner filed a notice of 21 appeal along with a motion for certificate of appealability and a motion to proceed in forma 22 pauperis on appeal. (Doc. Nos. 21–23.) 23 In the August 23, 2017 order denying the petition for writ of habeas corpus, the court 24 found that petitioner had not made the required showing under 28 U.S.C. § 2253(c). (Doc. No. 19 25 at 2.) The court previously declined to issue a certificate of appealability. Recognizing this, 26 petitioner does not ask the district court to issue a certificate of appealability itself, but rather to 27 “forward this motion to the Ninth Circuit Court of Appeals.” (Doc. No. 22 at 4.) A habeas 28 petitioner may seek a certificate of appealability from the Ninth Circuit Court of Appeals directly. 1 1 See 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a certificate of appealability. 2 . .”); Lambright v. Stewart, 220 F.3d 1022, 1024 (9th Cir. 2000) (noting the district court had 3 denied a certificate of appealability, but the circuit court had granted one). Therefore, petitioner 4 should direct his request to the Clerk of the Court for the Ninth Circuit Court of Appeals. The 5 motion for a certificate of appealability is denied without prejudice to the petitioner submitting 6 his request to the Ninth Circuit Court of Appeals. 7 Petitioner paid the filing fee for the instant habeas action, but now moves to proceed in 8 forma pauperis on appeal. Rule 24(a) of the Federal Rules of Appellate Procedure provides that: 9 [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: 10 11 12 (A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party’s inability to pay or to give security or fees and costs; 13 (B) claims an entitlement to redress; and 14 (C) states the issues that the party intends to present on appeal. 15 16 17 Fed. R. App. P. 24(a)(1). Here, petitioner has demonstrated his inability to pay. (See Doc. No. 23.) In his 18 concurrently filed motion for a certificate of appealability, petitioner claims entitlement to redress 19 and states the issues he seeks to raise on appeal. Accordingly, the court will grant the motion to 20 proceed in forma pauperis on appeal. 21 Given the foregoing: 22 1. Petitioner’s motion for a certificate of appealability (Doc. No. 22) is denied; and 23 2. Petitioner’s motion to proceed in forma pauperis on appeal (Doc. No. 23) is granted. 24 25 IT IS SO ORDERED. Dated: October 5, 2017 UNITED STATES DISTRICT JUDGE 26 27 28 2

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