Hernandez v. Frauenheim

Filing 27

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/23/17 DENYING 23 Motion to Proceed IFP; The Clerk of the Court is directed to serve a copy of this order on the United States Court of Appeals for the Ninth Circuit, and petitioner is hereby informed that he may file a motion to proceed in forma pauperis in the United States Court of Appeals for the Ninth Circuit.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK HERNANDEZ,

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No. 2:14-cv-1857-MCE-EFB P

Petitioner,
v.

ORDER

SCOTT FRAUENHEIM, Warden,

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Respondent.

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Petitioner is a state prisoner proceeding through counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Judgment was entered in this action on January 30, 2017

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and the court declined to issue a certificate of appealability. ECF Nos. 21, 22. On February 18,

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2017, petitioner filed a notice of appeal and a request to proceed in forma pauperis on appeal.

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ECF Nos. 23, 24.

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Rule 24(a) of the Federal Rules of Appellate Procedure provides that a party to a district

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court action who desires to proceed in forma pauperis on appeal must file a motion in the district

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court which:

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(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party’s
inability to pay or to give security for fees and costs;

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(B) claims an entitlement to redress; and

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(C) states the issues that the party intends to present on appeal.
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Fed. R. App. P. 24(a)(1). Petitioner’s motion, filed by counsel, indicates that an in forma

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pauperis affidavit, signed by petitioner, is forthcoming. Had it been included, however, the

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motion would still fail to satisfy all three of the requirements set forth in Rule 24(a), and is

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therefore denied.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s request to proceed in forma

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pauperis on appeal (ECF No. 23) is denied without prejudice. The Clerk of the Court is directed

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to serve a copy of this order on the United States Court of Appeals for the Ninth Circuit, and

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petitioner is hereby informed that he may file a motion to proceed in forma pauperis in the United

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States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(5).

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DATED: February 23, 2017.

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