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Walton v. Small

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 1, 2010

JAROLD ANDRE WALTON, PETITIONER,
v.
LARRY SMALL, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER: (1) DENYING THE CERTIFICATE OF APPEALABILITY (2) GRANTING THE MOTION FOR IN FORMA PAUPERIS

On November 14, 2008, Jarold Andre Walton ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner challenges his convictions for attempted murder, assault with a firearm, and possession of a firearm by a felon, alleging constitutionally ineffective trial and appellate counsel. (Id.) On February 9, 2009, Respondent filed an answer to the Petition. (Doc. No. 9.) On December 18, 2009, the magistrate judge issued a Report and Recommendation ("R&R") that the Court deny the Petition. (Doc. No. 22.) On January 25, 2010, Petitioner filed an objection to the R&R. (Doc. No. 24.) On February 17, 2010 the Court issued an order denying the Petition and denying a certificate of appealability ("COA"). (Doc. No. 25.) On March 19, 2010, Petitioner filed a notice of appeal and an application for a COA. (Doc. Nos. 27, 32.) Petitioner also filed a motion for leave to appeal in forma pauperis on March 19, 2010. (Doc. No. 28.)

Discussion

A. Certificate of Appealability

A prisoner seeking a COA must demonstrate a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 481 (2000)).

Petitioner has not made a substantial showing of a denial of a constitutional right in any of his claims. Accordingly, the Court DENIES a COA.

B. In Forma Pauperis

If a prisoner seeks to appeal a district court's decision in forma pauperis, the prisoner must appeal in good faith. See 28 U.S.C. § 1915(a)(3). In any case where the plaintiff or petitioner has been granted leave to file the action in forma pauperis, pauper status may continue for the appeal from a subsequent order or judgment, unless the district court certifies that the appeal is taken in bad faith or finds that the party is not otherwise entitled to continuing pauper status. See id.; Fed. R. App. P. 24(a). The Court finds no reason to revoke pauper status, and therefore, GRANTS Petitioner's motion for leave to appeal in forma pauperis.

Conclusion

For the reasons stated above, the Court DENIES a Certificate of Appealability and GRANTS Petitioner's Motion for Leave to Appeal in Forma Pauperis.

IT IS SO ORDERED.

20100401

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