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Ontiveros v. Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 26, 2010

HARON ONTIVEROS, PETITIONER,
v.
MATTHEW CATE, SECRETARY, RESPONDENT.

The opinion of the court was delivered by: John A. Houston United States District Judge

ORDER DENYING PETITIONER'S APPLICATION FOR CERTIFICATE OF APPEALABILITY [DOC. # 37]; AND DENYING WITHOUT PREJUDICE PETITIONER'S REQUEST TO PROCEED IN FORMA PAUPERIS ON APPEAL [DOC. # 38]

Petitioner, a state prisoner appearing pro se, has filed an application for issuance of a certificate of appealability by this Court. See Doc. # 37. However, based on this Court's review of the magistrate judge's report and recommendation issued in this case, along with petitioner's objections thereto, and the entire record in this matter, this Court has already found there were no issues presented that could be debatable among jurists of reason nor resolved in a different manner as is required for issuance of such a certificate. See Doc. # 31 at 7-8 (citing Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000); Slack v. McDaniel, 529 U.S. 473 (2000); Barefoot v. Estelle, 463 U.S. 880 (1983)). This Court further found that there were no questions raised deserving encouragement to proceed further. Doc. # 31 at 8. Despite petitioner's lengthy arguments seeking further review, see Doc. # 37 at 2-15, this Court finds no reason to disturb its prior ruling. Therefore, petitioner's application for reconsideration of issuance of a certificate of appealability by this Court is DENIED.

Petitioner has also filed a request to proceed in forma pauperis on appeal. See Doc. # 38. Under 28 U.S.C. § 1915(a), "any court of the United States may authorize the commencement. . .of any suit. . . or appeal. . .without prepayment of fees or security therefor, by a person who submits an affidavit. . .that the person is unable to pay such fees or give security therefor." A party seeking to proceed in forma pauperis on appeal must file a motion with the district court and attach 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).

Here, petitioner declares he is unemployed and has no assets of value. Thus, it appears petitioner is clearly without the ability to pay the filing fee on appeal. However, petitioner fails to detail the issues he intends to present on appeal as required for this Court to determine whether to grant or deny his request to proceed in forma pauperis on appeal. See Fed.R.App.P. 24(a)(1). Accordingly, petitioner's motion to proceed in forma pauperis on appeal is DENIED without prejudice.

CONCLUSION AND ORDER

Based on the foregoing, IT IS HEREBY ORDERED that:

1. Petitioner's application for a certificate of appealability [doc. # 37] is DENIED; and

2. Petitioner's request to proceed in forma pauperis on appeal [doc. # 38] is DENIED without prejudice.

20101026

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