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Powell v. Kirkland

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 4, 2008

MARCUS ANTHONY POWELL, PETITIONER,
v.
RICHARD KIRKLAND, RESPONDENT.

The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's June 27, 2008, denial of his petition for a writ of habeas corpus, (Doc. No. 34), along with an application to proceed in forma pauperis, (Doc. No. 35), and an application for a certificate of appealability (Doc. No. 34).

The Federal Rules of Appellate Procedure require that a party who wishes to proceed in forma pauperis on appeal must file in this Court a motion, attaching an affidavit that "(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs; (B) claims an entitlement to redress; and (C) states the issues that the party intends to present on appeal." FED. R. APP. P. 24(a)(1)(A)-(C). Petitioner has filed a "Declaration in Support of Request to Proceed In Forma Pauperis," which states that Petitioner has no assets, no income and has $0 on account to his credit at the Kern Valley State Prison. The form is signed by Petitioner but there is no signature provided in the area designated for the "Authorized Officer of Institution/Title of Officer" attesting to the balance in Petitioner's prison trust account. This declaration satisfies the requirements of FED. R. APP. P. 24(a)(1)(A)-(C). However, before Petitioner can appeal this Court's decision denying his petition, a certificate of appealability must issue. 28 U.S.C. § 2253(c); FED. R. APP. P. 22(b).

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). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. FED. R. APP. P. 22(b).

For the reasons set forth in the court's June 27, 2007 decision, Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability will not issue in this action.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's application to proceed in forma pauperis on appeal is GRANTED; and,

2. A certificate of appealability will not issue in this action.

20080804

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