Cox v. Rackley
Filing
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ORDER denying petitioner's 46 Motion to Proceed IFP, signed by Judge John A. Mendez on 7/7/15. The Clerk shall notify the Ninth Circuit Court of Appeals of this order. (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DANIEL COX,
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No. 2:13-cv-2356 JAM GGH P
Petitioner,
v.
ORDER
RONALD J. RACKLEY,
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 denied the petition on the merits, and declined to issue a
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certificate of appealability. (ECF No. 43.) Petitioner has appealed and has filed a motion to
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proceed in forma pauperis. The motion is denied.
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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. 36), and in this
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court’s order adopting them. (ECF No. 43.) For these reasons, plaintiff’s motion to proceed in
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form pauperis on appeal is denied as the appeal is not in good faith.
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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. 46) 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: July 7, 2015
/s/ John A. Mendez________________________
UNITED STATES DISTRICT COURT JUDGE
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