Durham v. Thaler, No. 2:2009cv00256 - Document 22 (S.D. Tex. 2010)

Court Description: MEMORANDUM OPINION AND ORDER Denying 20 MOTION for Leave to Appeal in forma pauperis on appeal, Denying as moot 19 MOTION for Certificate of Appealability.(Signed by Judge Hayden Head) Parties notified.(srussell, )

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION GLENN LACY DURHAM, Petitioner V. RICK THALER, Director, TDCJ-CID, Respondent § § § § § § § CIVIL ACTION NO. C-09-256 MEMORANDUM OPINION AND ORDER DENYING APPLICATIONS FOR CERTIFICATE OF APPEALABILITY AND FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Petitioner, an inmate at TDCJ-CID s McConnell Unit in Beeville, Texas, filed this petition pro se and in forma pauperis pursuant to 28 U.S.C. § 2254, challenging a Kleberg County conviction for murder (D.E. 1, 10). Petitioner motion for entry of default judgment (D.E. 12) was denied on February 5, 2010 (D.E. 16). On February 16, 2010, petitioner filed a notice of appeal to the Fifth Circuit of the order denying his motion for entry of default judgment (D.E. 18). Pending are petitioner s applications (1) for a certificate of appealability (D.E. 19); and (2) for leave to proceed in forma pauperis on appeal (D.E. 20). Petitioner was granted leave to proceed in forma pauperis on October 22, 2009 (D.E. 8); therefore he is permitted to proceed in forma pauperis on appeal unless the district court certifies that the appeal is not taken in good faith. FED. R. APP. P. 24(a)(3). Good faith means that the issues on appeal are not frivolous. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917 (1962). In this case the order denying default judgment is not an appealable final judgment for purposes of 28 U.S.C. § 1291, nor is it an interlocutory order subject to appeal. 28 U.S.C. § 1292; Adult Film Ass n. of America v. Thetford, 776 F.2d 113 (1985). Petitioner s appeal is not taken in good faith, his application for leave to proceed in forma pauperis is denied, and his application for a certificate of appealability is denied as moot. ORDERED February 22, 2010. ____________________________________________ HAYDEN HEAD SENIOR UNITED STATES DISTRICT JUDGE

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