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Juan R. Lopez v. Kathleen L. Dickinson

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


September 19, 2011

JUAN R. LOPEZ, PETITIONER,
v.
KATHLEEN L. DICKINSON, RESPONDENT.

ORDER

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner paid the $5.00 filing fee on January 29, 2010. On July 18, 2011, judgment was entered in this case following the Honorable John A. Mendez's adoption in full of the undersigned's findings and recommendations recommending that petitioner's application for a writ of habeas corpus be denied. Petitioner thereafter filed a notice of appeal and the instant motion to proceed in forma pauperis.

A party who was permitted to proceed in forma pauperis in the district court may proceed in forma pauperis on appeal without further authorization unless the district court certifies that the appeal is not taken in good faith. Fed. R. App. P. 24(a)(3). In this case, petitioner paid the filing fee and did not proceed in this court in forma pauperis. Thus, petitioner is not automatically entitled to proceed in forma pauperis on appeal.

Rule 24(a)(1) of the Federal Rules of Appellate Procedure states that a party who desires to appeal in forma pauperis must file a motion in the district court and attach to that motion a completed application to proceed in forma pauperis, along with the issues the party intends to present on appeal. Although petitioner's application meets these requirements and the substance of petitioner's declaration complies with the detail prescribed by Form 4 of the Appendix of Forms for the Rules Governing Section 2254 Cases, petitioner has not submitted a certified prison trust account statement in accordance with Form 4. Petitioner will be provided the opportunity to submit the appropriate affidavit in support of a request to proceed in forma pauperis.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's request to proceed in forma pauperis is denied without prejudice. Petitioner shall submit a complete and certified application to proceed in forma pauperis within thirty days of the date of this order.

2. The Clerk of the Court is directed to send petitioner an Application to Proceed In Forma Pauperis By a Prisoner.

20110919

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