Parker v. Standifird et al

Filing 54

ORDER Denying re 51 MOTION for Leave to Appeal in forma pauperis filed by Alvin Parker, Denying 49 Notice of Appeal filed by Alvin Parker, denying 53 MOTION for Leave to Proceed in forma pauperis filed by Alvin Parker. Signed by Honorable Timothy D. DeGiusti on 12/14/2011. (mb, )

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ALVIN PARKER,
Petitioner,
v.
JANE STANDIFIRD, Warden,
Respondent.

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Case No. CIV-10-1395-D

ORDER
Petitioner, a state prisoner appearing pro se, has filed an Application for Certificate of
Appealability and Order for Leave to Proceed on Appeal In Forma Pauperis [Doc. No. 49].
Petitioner seeks to appeal the Order of November 21, 2011, denying leave to amend his habeas
petition to challenge a parole decision pursuant to 28 U.S.C. § 2241. Petitioner has also filed a
separate Motion to Proceed In Forma Pauperis and Supporting Affidavit [Doc. No. 51] and
Application to Proceed in District Court Without Prepaying Fees or Costs [Doc. No. 53].
Petitioner is entitled to a COA “only if [he] has made a substantial showing of the denial of
a constitutional right.” See 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “Where a district court has rejected the constitutional claims
on the merits, . . . [t]he petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484.
Defendant is not required to demonstrate that his appeal will succeed to be entitled to a COA, but
he must “prove something more than the absence of frivolity or the existence of mere good faith.”

Miller-El, 537 U.S. at 338. Upon consideration of Petitioner’s Application and the case record, the
Court finds that Petitioner has not made the requisite showing. Therefore, his request for a COA
must be denied.
To proceed in forma pauperis on appeal, Petitioner must show both that he is unable to pay
the required fees and that the appeal is taken in good faith. See 28 U.S.C. § 1915(a)(1) & (3); see
also McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). A showing of
good faith requires the presentation of a “reasoned, nonfrivolous argument on the law and facts in
support of the issues raised on appeal.” Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir.1999),
see McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). Upon consideration, the
Court finds that Petitioner has demonstrated a financial inability to pay the appellate filing fees but
he has not identified a reasoned, nonfrivolous issue or supporting argument to be presented on
appeal. Accordingly, the Court finds that Petitioner’s appeal is not taken in good faith. Therefore,
Petitioner is not entitled to proceed without prepayment of the filing fees for his appeal.
IT IS THEREFORE ORDERED that Petitioner’s Application for Certificate of Appealability
and Order for Leave to Proceed on Appeal In Forma Pauperis [Doc. No. 49], as well as his Motion
to Proceed In Forma Pauperis [Doc. No. 51] and Application to Proceed in District Court Without
Prepaying Fees or Costs [Doc. No. 53], are DENIED. Petitioner is advised that unless the $455.00
appellate filing fee is paid in full to the Clerk of this Court within 30 days of the date of this Order,
the appeal may be subject to dismissal by the appellate court.
IT IS SO ORDERED this 14th day of December, 2011.

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