Filed: Jun. 06, 2013
Latest Update: Jun. 06, 2013
Summary: ORDER CAROLYN K. DELANEY, Magistrate Judge. Petitioner, a state prisoner proceeding in forma pauperis, sought relief pursuant to 28 U.S.C. 2254. This action was terminated on March 26, 2013. On May 24, 2013, petitioner filed a notice of appeal and a motion for leave to proceed in forma pauperis on appeal. Rule 24 of the Federal Rules of Appellate Procedure provides as follows: a party who has been permitted to proceed in an action in the district court in forma pauperis . . . may proceed o
Summary: ORDER CAROLYN K. DELANEY, Magistrate Judge. Petitioner, a state prisoner proceeding in forma pauperis, sought relief pursuant to 28 U.S.C. 2254. This action was terminated on March 26, 2013. On May 24, 2013, petitioner filed a notice of appeal and a motion for leave to proceed in forma pauperis on appeal. Rule 24 of the Federal Rules of Appellate Procedure provides as follows: a party who has been permitted to proceed in an action in the district court in forma pauperis . . . may proceed on..
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ORDER
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner, a state prisoner proceeding in forma pauperis, sought relief pursuant to 28 U.S.C. § 2254. This action was terminated on March 26, 2013. On May 24, 2013, petitioner filed a notice of appeal and a motion for leave to proceed in forma pauperis on appeal.
Rule 24 of the Federal Rules of Appellate Procedure provides as follows:
a party who has been permitted to proceed in an action in the district court in forma pauperis . . . may proceed on appeal in forma pauperis without further authorization unless . . . the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed. . . .
Fed. R. App. 24. Since the district court has not certified that petitioner's appeal is not taken in good faith or otherwise found that petitioner is not entitled to proceed on appeal in forma pauperis, petitioner's motion for leave to proceed in forma pauperis on appeal will be denied as unnecessary.
Petitioner also seeks a certificate of appealability pursuant to 28 U.S.C. § 2253. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in the March 26, 2013 order, petitioner has not made a substantial showing of the denial of a constitutional right.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's May 24, 2013 motion to proceed in forma pauperis on appeal (ECF No. 34) is denied as unnecessary. See Fed. R. App. P. 24.
2. The Clerk of the Court is directed to process petitioner's May 24, 2013 notice of appeal (ECF No. 33); and
3. Petitioner's motion for a certificate of appealability pursuant to 28 U.S.C. § 2253 (ECF No. 36) is denied.
