Taylor v. Sisto et al

Filing 19

ORDER signed by District Judge George H. Wu on 7/5/11 GRANTING petitioner's Motion to Proceed on Appeal In Forma Pauperis and DENYING Application for a Certificate of Appealability. (Meuleman, A)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA-SACRAMENTO DIVISION

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JAMES TAYLOR,
REGINALD E.B. SCOTT,

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Petitioner,

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v.
D.K. SISTO, Warden,
Respondent.

) 2:7 CV 2427-GW
)
)
) ORDER GRANTING IN FORMA
) PAUPERIS STATUS ON APPEAL;
) ORDER DENYING CERTIFICATE
) OF APPEALABILITY
)
)
)
)

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Under Title 28, Section 2253, the right to appeal a final order in a habeas

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proceeding requires that petitioner obtain a Certificate of Appealability. 28 U.S.C.

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§ 2253(c)(1)(A). A Certificate of Appeal is required when a district court denies a

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state prisoner’s habeas petition challenging the denial of parole. Hayward v.

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Marshall, 603 F.3d 546, 552-55 (9th Cir. 2010), overruled on other grounds by

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Swarthout v. Cooke, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011). Both circuit judges

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and district judges have the authority to issue Certificates of Appealability. U.S. v.

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Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).
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With respect to a Certificate of Appealability, the district court “shall indicate

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which specific issue or issues satisfy the standard for issuing a certificate, or state

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its reasons why a certificate should not be granted.” Id.

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I.

IN FORMA PAUPERIS STATUS IS GRANTED

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An appeal may be taken in forma pauperis unless this Court certifies that it

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is not taken in good faith. 28 U.S.C. § 1915(a)(3). The good faith test is a liberal

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one and is satisfied if any issue appealed is not frivolous. Gardner v. Pogue, 558

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F.2d 548, 551 (9th Cir. 1977). An appeal “is frivolous where it lacks an arguable

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basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct.

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1827, 104 L.Ed.2d 338 (1989).

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In practical terms, the request of an indigent petitioner for leave to appeal in

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forma pauperis must be allowed unless the issues raised are so frivolous that such

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an appeal would be dismissed if appellant were a nonindigent litigant. Gardner v.

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Pogue, supra. By this liberal standard, it cannot be said that petitioner's appeal is

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not taken in good faith within the meaning of 28 U.S.C. § 1915(a)(3). However,

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nothing in this determination is to be construed as eliminating the requirements of

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28 U.S.C. § 1915(b)(1).

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II.

THE APPLICATION FOR A CERTIFICATE OF APPEALABILITY
IS DENIED

A Certificate of Appealability is to be granted only if the petitioner makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2);
see Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983).
A substantial showing of the denial of a constitutional right “includes showing 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

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U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), citing Barefoot, supra,

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463 U.S. at 893 n. 4. See also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct.

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1029, 154 L.Ed. 2d 931 (2003); Nevius v. McDaniel, 218 F.3d 940, 946 (9th Cir.

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2000); Alexander v. Johnson, 211 F.3d 895, 896-97 (5th Cir. 2000). “Where a

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district court has rejected the constitutional claims on the merits, the showing

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required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate

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that reasonable jurists

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constitutional claims debatable or wrong.” Slack, supra, 529 U.S. at 484.

would find the district court’s assessment of the

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As set forth in the Memorandum Decision adopted by the Court, petitioner

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has not presented a colorable claim for federal habeas corpus relief. Accordingly,

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petitioner has not made a substantial showing that he has been denied a

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constitutional right.

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ORDER

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Therefore, pursuant to 28 U.S.C. § 1915(a)(3), the Court GRANTS

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petitioner’s Motion to Proceed on Appeal In Forma Pauperis and, pursuant to 28

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U.S.C. § 2253, the Court DENIES the Application for a Certificate of Appealability.

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DATED: July 5, 2011

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GEORGE H. WU
UNITED STATES DISTRICT JUDGE

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