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Gayles v. Sisto

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


May 7, 2010

KENYA GAYLES, PETITIONER,
v.
D. K. SISTO, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On April 13, 2010, petitioner requested an extension of time to submit an application to proceed in forma pauperis on appeal. See Fed. R. Civ. P. 6(b). On April 15, 2010, petitioner filed the application.

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 proceed 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)(1). Petitioner has filed a form "Application to Proceed In Forma Pauperis By a Prisoner" stating his inability to pay or to give security for fees and costs. The declaration fails to include many details prescribed by Form 4 of the Appendix of Forms, however. In addition, petitioner has not described the issues he intends to present on appeal.

Accordingly, IT IS HEREBY ORDERED that petitioner's July 16, 2009, request to proceed in forma pauperis on appeal is denied without prejudice. The Clerk of the Court is directed to serve a copy of this order on the United States Court of Appeals for the Ninth Circuit, and plaintiff is advised that he may file a motion to proceed in forma pauperis in the United States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(5).

The court HEREBY ORDERS:

1. Good cause appearing, petitioner's April 13, 2010, request for an extension of time is granted and petitioner's April 15, 2010, application to proceed in forma pauperis on appeal is deemed timely filed.

2. Petitioner's April 15, 2010 request to proceed in forma pauperis on appeal is denied without prejudice. The Clerk of the Court is directed to serve a copy of this order on the United States Court of Appeals for the Ninth Circuit, and plaintiff is advised that he may file a motion to proceed in forma pauperis in the United States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(5).

20100507

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