Hunt v. Finn

Filing 21

ORDER signed by Senior Judge Fred Van Sickle on 12/21/09 ORDERING that the 19 Motion for Certificate of Appealability is DENIED and the 20 Motion to Proceed IFP is DENIED. (Benson, A.)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA RICHARD DEWAYNE HUNT, No. 2:07-CV-0461-FVS Petitioner, v. CLAUDE FINN, et al., Respondents. THIS MATTER comes before the Court on Petitioner's application for a certificate of appealability. (Ct. Rec. 19). Petitioner has (Ct. Rec. ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY

additionally filed a request to proceed in forma pauperis. 20). Petitioner is proceeding pro se.

Respondent is represented by

Amy Daniel. DISCUSSION I. Certificate of Appealability On December 3, 2009, Petitioner's petition for writ of habeas corpus was denied, and judgment was entered. (Ct. Rec. 16).

Petitioner filed a notice of appeal and thereafter requested the issuance of a certificate of appealability on the issue of whether there was "some evidence" to support the Board of Parole Hearings' finding that Petitioner remains a danger to society. (Ct. Rec. 19).

"Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the

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detention complained of arises out of process issued by a State court." 28 U.S.C. § 2253(c)(1)(A). A district court possesses the United States v.

authority to issue a certificate of appealability. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

The issuance of a

certificate of appealability is a jurisdictional prerequisite to appeal. Gatlin v. M.K. Madding, 189 F.3d 882, 886 (9th Cir. 1999), "A certificate of appealability

cert. denied. 528 U.S. 1087 (2000).

may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); To make a

Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999).

substantial showing, Petitioner must establish that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In this case, there was clearly "some evidence" justifying the Board's decision to deny parole based on Petitioner being a danger to society. That evidence includes Petitioner's commitment offense,

pattern of criminal conduct, failure to profit from society's previous attempts to correct his criminality, weak residential and employment plans for release, and lack of participation in self-help therapy programs. (Ct. Rec. 16 at 10). The Court

The Court has reviewed the file and is fully informed.

finds that reasonable jurists would not find it debatable that Petitioner has failed to show an entitlement to federal habeas corpus

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relief.

Petitioner has failed to make a substantial showing of the Petitioner's request for the

denial of a constitutional right.

issuance of a certificate of appealability (Ct. Rec. 19) is therefore DENIED. II. In Forma Pauperis On December 15, 2009, Petitioner also filed a motion for leave to proceed in forma pauperis. (Ct. Rec. 20). A party who was permitted

to proceed in forma pauperis in 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. Fed. R. App. P. 24(a)(3). In this case, Petitioner paid the filing Thus,

fee and did not proceed in this Court in forma pauperis.

Petitioner is not automatically entitled to proceed in forma pauperis on appeal. Rule 24(a)(1) of the Federal Rules of Appellate Procedure states that a party who desires to appeal in forma pauperis must file a motion in the district court and attach to that motion a completed application to proceed in forma pauperis, along with the issues the party intends to present on appeal. Petitioner's request, however,

was not accompanied by a completed application to proceed in forma pauperis and does not otherwise comply with Rule 24(a)(1) of the Federal Rules of Appellate Procedure. Accordingly, Petitioner's

request to proceed in forma pauperis (Ct. Rec. 20) is DENIED. Based on the foregoing, IT IS HEREBY ORDERED as follows: 1. Petitioner's Request for Certificate of Appealability (Ct.

Rec. 19) is DENIED.

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2.

Petitioner's request to proceed in forma pauperis (Ct. Rec.

20) is DENIED. IT IS SO ORDERED. The District Court Executive is directed to

enter this order and furnish copies to Petitioner and counsel. DATED this 21st day of December, 2009. S/Fred Van Sickle Fred Van Sickle Senior United States District Judge

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