Walton v. Small

Filing 33

ORDER denying 32 Motion for Certificate of Appealability; granting 28 Motion for Leave to Appeal in forma pauperis. Signed by Judge Marilyn L. Huff on 4/1/2010. (USCA Case No. 10-55435. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -108cv02131 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JAROLD ANDRE WALTON, Petitioner, vs. CASE NO. 08-CV-02131-H (POR) ORDER: (1) DENYING THE CERTIFICATE OF APPEALABILITY (2) GRANTING THE MOTION FOR IN FORMA PAUPERIS LARRY SMALL, Warden, Respondent. On November 14, 2008, Jarold Andre Walton ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges his convictions for attempted murder, assault with a firearm, and possession of a firearm by a felon, alleging constitutionally ineffective trial and appellate counsel. (Id.) On February 9, 2009, Respondent filed an answer to the Petition. (Doc. No. 9.) On December 18, 2009, the magistrate judge issued a Report and Recommendation ("R&R") that the Court deny the Petition. (Doc. No. 22.) On January 25, 2010, Petitioner filed an objection to the R&R. (Doc. No. 24.) On February 17, 2010 the Court issued an order denying the Petition and denying a certificate of appealability ("COA"). (Doc. No. 25.) On March 19, 2010, Petitioner filed a notice of appeal and an application for a COA. (Doc. Nos. 27, 32.) Petitioner also filed a motion for leave to appeal in forma pauperis on March 19, 2010. (Doc. No. 28.) 1 2 3 A. Discussion Certificate of Appealability A prisoner seeking a COA must demonstrate a "substantial showing of the denial of a 4 constitutional right." 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 327 5 (2003). A petitioner satisfies this standard by demonstrating that jurists of reason could 6 disagree with the district court's resolution of his constitutional claims or that jurists could 7 conclude the issues presented are adequate to deserve encouragement to proceed further. 8 Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)). 9 Petitioner has not made a substantial showing of a denial of a constitutional right in any 10 of his claims. Accordingly, the Court DENIES a COA. 11 12 B. In Forma Pauperis If a prisoner seeks to appeal a district court's decision in forma pauperis, the prisoner must 13 appeal in good faith. See 28 U.S.C. § 1915(a)(3). In any case where the plaintiff or petitioner 14 has been granted leave to file the action in forma pauperis, pauper status may continue for the 15 appeal from a subsequent order or judgment, unless the district court certifies that the appeal 16 is taken in bad faith or finds that the party is not otherwise entitled to continuing pauper status. 17 See id.; Fed. R. App. P. 24(a). The Court finds no reason to revoke pauper status, and 18 therefore, GRANTS Petitioner's motion for leave to appeal in forma pauperis. 19 20 Conclusion For the reasons stated above, the Court DENIES a Certificate of Appealability and 21 GRANTS Petitioner's Motion for Leave to Appeal in Forma Pauperis. 22 IT IS SO ORDERED. 23 DATED: April 1, 2010 24 25 26 COPIES TO: 27 All parties of record. 28 -208cv02131 _________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT

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