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Smith v. Adams

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


November 3, 2010

FREE ODELL SMITH, PETITIONER,
v.
DERRAL ADAMS, RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding in forma pauperis, sought relief pursuant to 28 U.S.C. § 2254. This action was terminated on October 20, 2010. On October 27, 2010, petitioner filed a notice of appeal and a motion for leave to proceed in forma pauperis on appeal.

Rule 24 of the Federal Rules of Appellate Procedure provides as follows: a party who has been permitted to proceed in an action in the district court in forma pauperis . . . may proceed on appeal in forma pauperis without further authorization unless . . . the district court shall certify that the appeal is not taken in good faith or shall find that the party is otherwise not entitled so to proceed . . . .

Fed. R. App. 24. Because the district court has not certified that petitioner's appeal is not taken in good faith or otherwise found that petitioner is not entitled to proceed on appeal in forma pauperis, petitioner's motion for leave to proceed in forma pauperis on appeal will be denied as unnecessary.

On October 27, 2010, petitioner filed a motion for the appointment of counsel addressed to this court. Because this action is on appeal, petitioner's motion for appointment of counsel should be addressed to the Ninth Circuit Court of Appeals. For that reason, the motion for appointment of counsel addressed to this court is disregarded.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's October 27, 2010 motion to proceed in forma pauperis on appeal (Dkt. No. 56) is denied as unnecessary. See Fed. R. App. P. 24;

2. Petitioner's October 27, 2010 motion for appointment of counsel (Dkt. No. 55) is disregarded.

20101103

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