Weaver v. Director, TDCJ-CID
Filing
59
MEMORANDUM OPINION - denying 58 MOTION for Leave to Appeal in forma pauperis filed by Mary Kathryn Weaver. All future motions should be filed with the Clerk of the United States Court of Appeals for the Fifth Circuit. Signed by Judge Rodney Gilstrap on 10/5/12. (ehs, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
MARY KATHRYN WEAVER, 1315776
§
VS.
§
DIRECTOR, TDCJ-CID
§
CIVIL ACTION NO. 2:09cv128
MEMORANDUM OPINION AND ORDER
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Came on for consideration, the Petitioner’s motion to proceed in forma pauperis on appeal
(docket entry #58).
On July 13, 2012, the assigned Magistrate Judge filed a Report and Recommendation (R&R)
that Petitioner’s petition be dismissed with prejudice (docket entry #52). The Petitioner then filed
objections (docket entry #54) to the Magistrate Judge’s R&R. Her objections largely restated her
original arguments, or made generally conclusory additional statements.
On a de novo review, the Court overruled Petitioner’s objections, adopted the R&R, denied
all relief and dismissed Petitioner’s habeas petition with final judgment entered on August 28, 2012.
The Court denied a certificate of appealability (“COA”) at the same time.
For the reasons stated in the Report and Recommendation and the Order of Dismissal
adopting the Report and Recommendation and dismissing Petitioner’s habeas petition, Petitioner
does not have a “good faith” non-frivolous issue for appeal as required for leave to proceed in forma
pauperis. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Baugh v. Taylor, 117 F.3d 197,
202 n.21 (5th Cir. 1997) (To comply with Rule 24 and to inform the Court of Appeals of the reasons
for its certification, a district court may incorporate by reference its order dismissing an appellant’s
claims (in the context of a civil rights action pursuant to 42 U.S.C. § 1983)). Furthermore, because
the Petitioner has not shown that she is entitled to a certificate of appealability, she also has not
shown that she is entitled to proceed in forma pauperis on appeal. United States v. Delario, 120 F.3d
1
.
580, 582-83 (5th Cir. 1997). In addition, Petitioner did not proceed in forma pauperis in the District
Court; in fact, she paid a $350.00 filing fee in error and was returned the excess $345.00 over the
$5.00 habeas corpus filing fee. Therefore, Petitioner is denied leave to proceed in forma pauperis
on appeal. It is accordingly
ORDERED that the motion to proceed in forma pauperis on appeal (docket entry #58) is
DENIED. All future motions should be filed with the Clerk of the United States Court of Appeals
for the Fifth Circuit.
SIGNED this 19th day of December, 2011.
So ORDERED and SIGNED this 5th day of October, 2012.
____________________________________
RODNEY GILSTRAP
UNITED STATES DISTRICT JUDGE
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