Weaver v. Director, TDCJ-CID, No. 2:2009cv00128 - Document 59 (E.D. Tex. 2012)
Court Description: MEMORANDUM OPINION - denying 58 MOTION for Leave to Appeal in forma pauperis filed by Mary Kathryn Weaver. All future motions should be filed with the Clerk of the United States Court of Appeals for the Fifth Circuit. Signed by Judge Rodney Gilstrap on 10/5/12. (ehs, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION MARY KATHRYN WEAVER, 1315776 § VS. § DIRECTOR, TDCJ-CID § CIVIL ACTION NO. 2:09cv128 MEMORANDUM OPINION AND ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL Came on for consideration, the Petitioner s motion to proceed in forma pauperis on appeal (docket entry #58). On July 13, 2012, the assigned Magistrate Judge filed a Report and Recommendation (R&R) that Petitioner s petition be dismissed with prejudice (docket entry #52). The Petitioner then filed objections (docket entry #54) to the Magistrate Judge s R&R. Her objections largely restated her original arguments, or made generally conclusory additional statements. On a de novo review, the Court overruled Petitioner s objections, adopted the R&R, denied all relief and dismissed Petitioner s habeas petition with final judgment entered on August 28, 2012. The Court denied a certificate of appealability ( COA ) at the same time. For the reasons stated in the Report and Recommendation and the Order of Dismissal adopting the Report and Recommendation and dismissing Petitioner s habeas petition, Petitioner does not have a good faith non-frivolous issue for appeal as required for leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3)(A); Baugh v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997) (To comply with Rule 24 and to inform the Court of Appeals of the reasons for its certification, a district court may incorporate by reference its order dismissing an appellant s claims (in the context of a civil rights action pursuant to 42 U.S.C. § 1983)). Furthermore, because the Petitioner has not shown that she is entitled to a certificate of appealability, she also has not shown that she is entitled to proceed in forma pauperis on appeal. United States v. Delario, 120 F.3d 1 . 580, 582-83 (5th Cir. 1997). In addition, Petitioner did not proceed in forma pauperis in the District Court; in fact, she paid a $350.00 filing fee in error and was returned the excess $345.00 over the $5.00 habeas corpus filing fee. Therefore, Petitioner is denied leave to proceed in forma pauperis on appeal. It is accordingly ORDERED that the motion to proceed in forma pauperis on appeal (docket entry #58) is DENIED. All future motions should be filed with the Clerk of the United States Court of Appeals for the Fifth Circuit. SIGNED this 19th day of December, 2011. So ORDERED and SIGNED this 5th day of October, 2012. ____________________________________ RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE 2
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