Green v. Sirmons

Filing 53

OPINION AND ORDER by District Judge James H. Payne ; denying certificate of appealability; setting/resetting deadline(s): ($455.00 Filing Fee due by 6/29/2009); denying 50 Motion for Leave to Appeal in Forma Pauperis; (Re: 46 Notice of Appeal to Circuit Court ) (lsa, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA
RICKKE LEON GREEN, Petitioner, v. MARTY SIRMONS, Warden, Respondent. ) ) ) ) ) ) ) ) )

No. CIV 07-385-JHP-KEW

OPINION AND ORDER DENYING CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Petitioner has filed a notice of intent to appeal the denial of his petition for a writ of habeas corpus [Docket #46] and a motion to proceed in forma pauperis on appeal [Docket #50]. The court construes the notice of appeal as an application for a certificate of appealability. After careful review of the record, the court concludes petitioner has not shown "at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether [this] court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also 28 U.S.C. § 2253(c). Therefore, petitioner is not entitled to a certificate of appealability. To proceed on appeal in forma pauperis, petitioner must show that his appeal is taken in good faith and that he lacks the financial ability to pay the required fees. See 28 U.S.C. § 1915(a)(1) & (3); McIntosh v. United States Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997). Having reviewed the record, the court finds petitioner has not presented a reasoned, nonfrivolous argument for appeal, and the appeal is not taken in good faith. Therefore, he

is not entitled to proceed on appeal without prepayment of the filing fee. Petitioner is directed to forward the $455.00 filing fee to the Court Clerk within twenty (20) days. IT IS FURTHER ORDERED that the Court Clerk send a copy of this order to petitioner's custodian and the trust fund officer at his institution. ACCORDINGLY, petitioner is denied a certificate of appealability, and his motion for leave to proceed in forma pauperis on appeal [Docket #50] also is denied. IT IS SO ORDERED this 8th day of June 2009.

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