Ivey v. Barr

Filing 43

MEMORANDUM AND ORDER - Petitioner is directed to submit the $505.00 fee to the clerk's office or submit a request to proceed in forma pauperis within 30 days. The clerk of the court is directed to send to Petitioner the Form AO240 ("Ap plication to Proceed Without Prepayment of Fees and Affidavit"). To the extent Petitioner seeks a certificate of appealability from this court, his request (filing 41 ) is denied. Petitioner's Motion for a Certificate of Appealability (fil ing 41 ) is referred to the Eighth Circuit Court of Appeals. The clerk of the court is directed to set a pro se case management deadline in this matter with the following text: December 21, 2020: Check for MIFP or payment. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)

8:19-cv-00153-RGK-PRSE Doc # 43 Filed: 11/20/20 Page 1 of 2 - Page ID # 611

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID IVEY,
Petitioner,

8:19CV153

vs.
MEMORANDUM AND ORDER
ASHLEY SACRISTE,
Respondent.

This matter is before the court on the Notice of Appeal (filing 40) and
Motion for Certificate of Appealability (filing 41) filed by Petitioner David Ivey on
November 18, 2020. Also before the court is a memorandum from the Clerk of the
Court requesting a ruling as to Petitioner’s authorization to proceed in forma
pauperis on appeal. (Filing 42.)
Petitioner has failed to include the $505.00 appellate filing and docket fees.
Petitioner has not previously been granted leave to proceed in forma pauperis in
the district court in connection with his § 2254 petition. Thus, Fed. R. App. P.
24(a)(3), which continues in forma pauperis status on appeal without further
authorization, does not apply. Within 30 days, Petitioner must either submit the
$505.00 filing and docket fees to the clerk=s office or submit a request to proceed
in forma pauperis. Petitioner=s appeal cannot be processed until either the appellate
filing fee is paid or the question of Plaintiff=s authorization to proceed on appeal in
forma pauperis is resolved.
With respect to Petitioner’s Motion for a Certificate of Appealability (filing
41), it is apparent upon review of the motion that Petitioner’s request for a
certificate of appealability is directed to the Eighth Circuit Court of Appeals. See
28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). In any case, the court in its
Memorandum and Order and Judgment dated October 21, 2020, informed

8:19-cv-00153-RGK-PRSE Doc # 43 Filed: 11/20/20 Page 2 of 2 - Page ID # 612

Petitioner that it would not issue a certificate of appealability in this matter. (Filing
38 at CM/ECF pp. 46–47.)
IT IS THEREFORE ORDERED that:
1.
Petitioner is directed to submit the $505.00 fee to the clerk=s office or
submit a request to proceed in forma pauperis within 30 days.
2.
The clerk of the court is directed to send to Petitioner the Form
AO240 (AApplication to Proceed Without Prepayment of Fees and Affidavit@).
3.
To the extent Petitioner seeks a certificate of appealability from this
court, his request (filing 41) is denied.
4.
Petitioner’s Motion for a Certificate of Appealability (filing 41) is
referred to the Eighth Circuit Court of Appeals.
4.
The clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: December 21, 2020: Check for
MIFP or payment.
Dated this 20th day of November, 2020.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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