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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK HERNANDEZ, 12 13 14 No. 2:14-cv-1857-MCE-EFB P Petitioner, v. ORDER SCOTT FRAUENHEIM, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding through counsel on a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Judgment was entered in this action on January 30, 2017 19 and the court declined to issue a certificate of appealability. ECF Nos. 21, 22. On February 18, 20 2017, petitioner filed a notice of appeal and a request to proceed in forma pauperis on appeal. 21 ECF Nos. 23, 24. 22 Rule 24(a) of the Federal Rules of Appellate Procedure provides that a party to a district 23 court action who desires to proceed in forma pauperis on appeal must file a motion in the district 24 court which: 25 26 (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; 27 (B) claims an entitlement to redress; and 28 (C) states the issues that the party intends to present on appeal. 1 1 Fed. R. App. P. 24(a)(1). Petitioner’s motion, filed by counsel, indicates that an in forma 2 pauperis affidavit, signed by petitioner, is forthcoming. Had it been included, however, the 3 motion would still fail to satisfy all three of the requirements set forth in Rule 24(a), and is 4 therefore denied. 5 Accordingly, IT IS HEREBY ORDERED that petitioner’s request to proceed in forma 6 pauperis on appeal (ECF No. 23) is denied without prejudice. The Clerk of the Court is directed 7 to serve a copy of this order on the United States Court of Appeals for the Ninth Circuit, and 8 petitioner is hereby informed that he may file a motion to proceed in forma pauperis in the United 9 States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(5). 10 DATED: February 23, 2017. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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