IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 13, 2009
RENE CAZARES, PETITIONER,
W. J. SULLIVAN, ET AL., RESPONDENTS.
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's May 21, 2009 denial of his application for a writ of habeas corpus. Before petitioner can appeal this decision, 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 certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).
A certificate of appealability should be granted for any issue that petitioner can demonstrate is "'debatable among jurists of reason,'" could be resolved differently by a different court, or is "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).*fn1
Petitioner has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant petition: (1) whether his trial counsel rendered ineffective assistance; and (2) whether the trial court erroneously denied him the right to represent himself.
On June 26, 2009, petitioner filed a request to proceed in forma pauperis on appeal. The court file reflects that petitioner paid the filing fee for this action.
Rule 24(a) of the Federal Rules of Appellate Procedure provides that a party to a district court action who desires to appeal in forma pauperis on appeal must file a motion in the district court which:
(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)(2). Petitioner has attached the appropriate affidavit which demonstrates his inability to pay or to give security for fees and costs. In his June 22, 2009 request for a certificate of appealability, petitioner claimed entitlement to redress and described the issues he intended to present on appeal. Petitioner has complied with the requirements of Fed. R. App. P. 24(a). Accordingly, his request to proceed in forma pauperis on appeal will be granted.
Accordingly, IT IS HEREBY ORDERED that:
1. A certificate of appealability is issued in the present action; and
2. Petitioner's request to proceed in forma pauperis on appeal is granted.