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Singh v. Sisto

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


April 27, 2009

HARMEET SINGH, PETITIONER,
v.
D. K. SISTO, WARDEN, CALIFORNIA STATE PRISON, SOLANO, RESPONDENT.

The opinion of the court was delivered by: Timothy M. Burgess United States District Judge

ORDER

[Re: Motions at Docket Nos. 18 and 22]

On February 20, 2009, petitioner Harmeet Singh, a state prisoner proceeding pro se, filed a "Notice of Appeal Application to Proceed In Forma Pauperis" dated February 17, 2009, with a proof of service dated the same date. [Docket No. 19] The Notice of Appeal Application to Proceed In Forma Pauperis was incomplete in that it was unsupported by the affidavit required by Federal Rule of Appellate Procedure 24(a)(1)(A). At Docket No. 22, Singh filed a motion to extend the time to complete his in forma pauperis application by 30 days. "An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith."

28 U.S.C. § 1915(a)(3).

The record in the case shows that final judgment in this case was entered on December 31, 2008. [Docket No. 18] The Court in its Memorandum Decision entered on the same date as the final judgment declined to issue a certificate of appealability. [Docket No. 17]. A notice of appeal must be filed within 30 days of the date the judgment was entered. Fed. R. App. P. 4(a)(1). The notice of appeal in this case was filed February 17, 2009,*fn1 17 days late. The filing of a timely notice of appeal is jurisdictional. See Bowles v. Russell, 551 U.S. 205, ___, 127 S.C.t. 2360, 2362 (2007).

This Court having previously declined to issue a certificate of appealability and the fact that the appeal is untimely thereby depriving the court of appeals of jurisdiction over the appeal, the Court finds that the appeal is not taken in good faith. Even if Singh were able to comply with the requirements of Rule 24(a)(1), he would not be entitled to proceed on his appeal in forma pauperis. Accordingly,

IT IS ORDERED THAT the application to proceed in forma pauperis at Docket No. 18 is DENIED. Any further application to proceed in forma pauperis must be filed with the Court of Appeals for the Ninth Circuit. Fed. R. App. P. 24(a)(5).

IT IS FURTHER ORDERED THAT the motion to extend the time to complete the in forma pauperis application at Docket No. 22 is DENIED, as moot.

The Clerk of the Court is directed to notify the Court of Appeals for the Ninth Circuit of this order in accordance with Federal Rule of Appellate Procedure 24(a)(4).


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