Mabbs v. Biter
Filing
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ORDER signed by Judge John A. Mendez on 5/14/2015 DENYING 52 Motion to Proceed IFP. (cc: Ninth Circuit) (Michel, G.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAMES T. MABBS,
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No. 2:13-cv-0550 JAM GGH P
Petitioner,
v.
ORDER
CONNIE GIPSON,
Respondent.
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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. This court dismissed the petition as barred by the statute of
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limitations, and declined to issue a certificate of appealability. (ECF No. 49.) Petitioner has
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appealed and has filed a motion to proceed in forma pauperis.
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A party who was permitted to proceed in forma pauperis in the district court may proceed
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in forma pauperis on appeal without further authorization unless the district court certifies that the
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appeal is not taken in good faith. Fed. R.App. P. 24(a)(3). In the instant case, petitioner paid the
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filing fee in the district court. Thus, petitioner is not automatically entitled to proceed in forma
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pauperis on appeal.
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Regardless, Fed. R.App. P. 24(a)(3)(A) provides for the denial of an in forma pauperis
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application if “the district court--before or after the notice of appeal is filed--certifies that the
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appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in
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forma pauperis and states in writing its reasons for the certification or finding.”
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In the instant case, the court finds that this appeal is not taken in good faith, for the
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reasons stated in the magistrate judge’s findings and recommendations, (ECF No. 41), and in this
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court’s order adopting them in part. (ECF No. 49.) For these reasons, plaintiff’s motion to
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proceed in form pauperis on appeal is denied as the appeal is not in good faith.1
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Accordingly, IT IS HEREBY ORDERED that:
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1. Petitioner’s motion to proceed in forma pauperis on appeal (ECF No. 52) is denied;
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2. The Clerk of the Court shall notify the Ninth Circuit Court of Appeals of this order.
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DATED: May 14, 2015
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/s/ John A. Mendez________________________
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UNITED STATES DISTRICT COURT JUDGE
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Petitioner’s motion also fails to include a certificate by the institutional officer reflecting all
receipts, expenditures, and balances in petitioner’s prison trust account statement for the last six
months as set forth in Form 4 in the Appendix of Forms to the Federal Rules of Appellate
Procedure.
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