Mandeville v. Thompson

Filing 68

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER Accordingly, it is hereby ORDERED that: 1. Petitioner's Motion for Certificate of Appealability (Docket No. 66) is DENIED as MOOT. 2. Petitioner's Motion to Proceed in Forma Pauperis (Docket No. 67-1) is DENIED. 3. The Clerk shall transmit a copy of this Order to the Office of the Clerk of the First Circuit.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
R.H. MANDEVILLE,
Petitioner,

)
)
)
)
)
)
)
)

v.
MICHAEL A. THOMPSON,
Superintendent,
Respondent.

C.A. No. 05-11969-MLW

MEMORANDUM AND ORDER
WOLF, D.J.
I.

June 21, 2014

CERTIFICATE OF APPEALABILITY
On March 31, 2014, the court allowed petitioner Rae Herman

Mandeville's request to reopen his case, denied his petition for a
writ

of

habeas

corpus,

and

him

a

certificate

of

See Mar. 31, 2014 Memo. & Order at

appealability for all claims.
28.

denied

On April 23, 2014, Mandeville appealed this decision to the

United States Court of Appeals for the First Circuit, which ordered
him to file a motion for a certificate of appealability in the
First Circuit by May 16, 2014.

See Order of Court, Mandeville v.

Thompson, No. 14-1459 (1st Cir. May 2, 2014).
Mandeville evidently misconstrued the First Circuit's order,
and on May 20, 2014, Mandeville filed a motion for a certificate of
appealability in this court.

For the reasons this court explained

in the March 31, 2014 Memorandum and Order, the court did "not find
that 'reasonable jurists could debate whether . . . the petition
should have been resolved in a different manner or that the issues
presented

were

"adequate

to

deserve

encouragement

to

proceed

further,"'" Mar. 31, 2014 Memo. & Order at 27 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)), and therefore denied a
certificate of appealability for all claims.
Accordingly, Mandeville's new motion for a certificate of
appealability is being denied as moot.

However, pursuant to

Federal Rule of Appellate Procedure 22, "[i]f the district judge
has denied the certificate [of appealability], the applicant may
request a circuit judge to issue it."
II.

MOTION TO PROCEED IN FORMA PAUPERIS
On May 15, 2014, Mandeville sent a letter to the First

Circuit, expressing his desire to proceed in forma pauperis.

On

May 23, 2014, the First Circuit construed that letter as a motion
for an extension of time to pay his filing fees or to file a motion
to proceed in forma pauperis, forwarded to Mandeville the forms
necessary to file such a motion, and directed him to file his
motion in the district court.

See Order of Court, Mandeville, No.

14-1459 (1st Cir. May 23, 2014).

Again misconstruing the First

Circuit's order, Mandeville filed his motion to proceed in forma
pauperis with the First Circuit, which transmitted the motion to
this court.

See Order of Court, Mandeville, No. 14-1459 (1st Cir.

June 17, 2014).
Applications to appeal in forma pauperis are governed by 28
U.S.C. §1915 and Federal Rule of Appellate Procedure 24.

In

addition to showing an inability to pay the applicable filing fee,
2

the party must claim an entitlement to redress and state the issues
that he intends to present on appeal.

Here, petitioner failed to

provide a statement of the issues on appeal as required by Rule
24(a)(1)(C). Therefore, petitioner's motion is being denied. This
ruling does not preclude petitioner from filing a motion to proceed
in forma pauperis in the First Circuit, provided he does so
pursuant to Federal Rule of Appellate Procedure 24(a)(5).
III. ORDER
Accordingly, it is hereby ORDERED that:
1.

Petitioner's Motion for Certificate of Appealability

(Docket No. 66) is DENIED as MOOT.
2.

Petitioner's Motion to Proceed in Forma Pauperis (Docket

No. 67-1) is DENIED.
3.

The Clerk shall transmit a copy of this Order to the

Office of the Clerk of the First Circuit.
/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

3