Marshall v. Director, TDCJ-CID, No. 2:2009cv00276 - Document 32 (E.D. Tex. 2012)
Court Description: MEMORANDUM OPINION AND ORDER - ORDERED that the motion to proceed in forma pauperis on appeal (docket entry #31) is DENIED. 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 6/29/2012. (ch, )
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ANTHONY MARSHALL, #1488770 § VS. § DIRECTOR, TDCJ-CID § CIVIL ACTION NO. 2:09cv276 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 #31). On April 19, 2012, the assigned Magistrate Judge filed a Report and Recommendation (R&R) that Petitioner s petition be dismissed with prejudice (docket entry #25). The Petitioner then filed objections (docket entry #27) to the Magistrate Judge s R&R. His objections largely restated his original arguments with some additional argument relating to some of his grounds for relief. However, 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 May 31, 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 Adopting 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 he is entitled to a certificate of appealability, he also has not shown that he is entitled to proceed in forma pauperis on appeal. United States v. Delario, 120 F.3d 580, 5821 . 83 (5th Cir. 1997). 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 #31) 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 29th day of June, 2012. ____________________________________ RODNEY GILSTRAP UNITED STATES DISTRICT JUDGE 2
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