Singleton v. Kernan

Filing 12

ORDER by Magistrate Judge Elizabeth D. Laporte denying 10 Motion for Certificate of Appealability; denying 11 Motion for Leave to Proceed in forma pauperis. (Attachments: # 1 Certificate/Proof of Service)(rmm2S, COURT STAFF) (Filed on 10/23/2017)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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KEL YIN X. SINGLETON,

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Petitioner,

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SCOTT KERNAN,

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Case No. 17-cv-00468 EDL (PR)
ORDER DENYING CERTIFICATE OF
APPEALABILITY AS MOOT;
DENYING MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS

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Respondent.

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Petitioner, a state prisoner proceeding prose, filed a federal petition for writ of habeas

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corpus. Petitioner paid the filing fee. On March 29, 2017, this Court reviewed Petitioner's
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petition, and dismissed it for failing to state a claim because the petition did not challenge
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Petitioner's conviction or length of his sentence, and therefore, habeas jurisdiction was absent. In
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the same order, the Court denied a certificate of appealability.
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Petitioner filed a timely notice of appeal. Thereafter, Petitioner filed a request for a
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certificate of appealability in this Court, as well as a motion for leave to proceed in forma
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pauperis. The Court previously denied a certificate of appealability. Thus, Petitioner's request is
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denied as moot.
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In order to proceed in forma pauperis on appeal, a petitioner must file the motion in district
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court, unless the petitioner has already received prior approval to proceed in forma pauperis.
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Here, Petitioner paid the $5.00 filing fee. He has also filed a motion for leave to proceed in forma
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Case No. 17-cv-00468 EDL (PR)
ORDER DENYING CERTIFICATE OF APPEALABILITY AS MOOT; DENYING MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS

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pauperis, as required by Federal Rule of Appellate Procedure 24(a)(l). However, Rule

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24(a)(1 )(A) specifically requires a petitioner to "show[] in detail prescribed by Form 4 of the

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Appendix of Forms the party's inability to pay or to give security for fees and costs." Here,

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Petitioner has filed an application, but has not included a statement certified by the appropriate

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institutional officer showing all receipts, expenditure, and balances during the last six months in

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his institutional accounts, as required by Form 4. Accordingly, Petitioner's motion for leave to

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proceed in forma pauperis is denied without prejudice. Petitioner may renew his motion in the
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Court of Appeals within thirty days, and should include the affidavit required by Rule 24(a)(1).
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See Fed. R. App. P. 24(a)(5).
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The Clerk shall serve notice of this order forthwith to the United States Court of Appeals
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for the Ninth Circuit and to Petitioner. See Fed. R. App. P. 24(a)(4).

IT IS SO ORDERED.

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DATED:

UNITED STATES MAGISTRATE JUDGE

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Case No. 17-cv-00468 EDL (PR)
ORDER DENYING CERTIFICATE OF APPEALABILITY AS MOOT; DENYING MOTION FOR LEAVE TO
PROCEED IN FORMA PAUPERIS

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