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James Wren v. Gary Swarthout

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


January 14, 2013

JAMES WREN, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court dismissed the petition, declined to issue a certificate of appealability and closed this case on August 22, 2012. (Dkt. no. 7.) Petitioner has appealed and has filed a motion to proceed in forma pauperis in this court.

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 the instant case, petitioner never filed a motion to proceed in forma pauperis or paid the filing fee in the district court. Thus, petitioner is not automatically entitled to proceed in forma pauperis on appeal.

Furthermore, the court takes note of the docket in the Court of Appeals action, No. 12-17110, which reflects that a certificate of appealability is currently pending. (Dkt. no. 1.) Therefore, plaintiff's request is premature at this point in the proceedings.

Accordingly, IT IS HEREBY ORDERED that: Petitioner's motion to proceed in forma pauperis (Dkt. no. 13) is denied without prejudice to its renewal in the Ninth Circuit Court of Appeals.

20130114

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