Clemens v. Sisto

Filing 58

ORDER granting 57 Motion to Proceed IFP signed by Magistrate Judge Kendall J. Newman on 06/29/11. (cc: USCA-9th circuit) (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN ANTHONY CLEMENS,

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Petitioner,

No. 2:08-cv-2588 KJN P

Respondent.

ORDER

vs.
SISTO,

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Petitioner moves to proceed in forma pauperis in the Ninth Circuit Court of

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Appeals, pursuant to petitioner’s appeal of this court’s March 30, 2011 denial of his petition for

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writ of habeas corpus.1 Petitioner, who proceeded in forma pauperis before this court, filed his

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notice of appeal on May 2, 2011.

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The Ninth Circuit’s Federal Rule of Appellate Procedure 24(a)(3)(A), provides in

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pertinent part that “[a] party who was permitted to proceed in forma pauperis in the district-court

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action . . . may proceed on appeal in forma pauperis without further authorization, unless: (A)

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the district court -- before or after the notice of appeal is filed -- certifies that the appeal is not

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taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis

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Both parties consented to the jurisdiction of the magistrate judge for all purposes,
pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). (Dkt. Nos. 10, 14, 15.)
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and, states in writing its reasons for the certification or finding . . . .” See also 28 U.S.C. §

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1915(a)(3) (“[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing

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that it is not taken in good faith”).

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The court finds no reason to revoke petitioner’s in forma pauperis status. While

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this court denied petitioner a certificate of appealability as to the issues presented in his petition

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for writ of habeas corpus, that decision was premised on the court’s finding that petitioner had

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not made a substantial showing of a denial of a constitutional right, 28 U.S.C. § 2253(c)(2), that

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is, that “jurists of reason could [not] disagree with the district court’s resolution of [petitioner’s]

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constitutional claims,” Miller-el v. Cockrell, 537 U.S. 322, 327 (2003), citing Slack v McDaniel,

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529 U.S. 473, 484 (2000). However, this assessment does not imply that petitioner’s appeal

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lacks good faith. “[T]he standard governing the issuance of a certificate of appealability is not

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the same as the standard for determining whether an appeal is in good faith. It is more

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demanding.” Walker v. O’Brien, 216 F.3d 626, 631 (7th Cir. 2000).

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The court finds that petitioner’s appeal is neither frivolous, see Coppedge v.

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United States, 369 U.S. 438, 445 (1962) (an appeal of a nonfrivolous issue is assumed to be

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made in good faith), nor unreasonable, see Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000)

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(“to determine that an appeal is in good faith, a court need only find that a reasonable person

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could suppose that the appeal has some merit”). Therefore, there is no showing that petitioner’s

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appeal is not taken in good faith. See Fed. R. App. Proc. 24(a)(3)(A); 28 U.S.C. § 1915(a)(3).

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Nor is there any other basis for concluding that petitioner is not entitled to continue proceeding in

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forma pauperis. Fed. R. App. Proc. 24(a)(3)(A).

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Accordingly, petitioner’s motion to proceed in forma pauperis pursuant to his

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appeal of this action is hereby granted.

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DATED: June 29, 2011
_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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clem2588.ifp.app

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