Free Order on Motion for Leave to Appeal - District Court of California - California

Case 3:08-cv-00853-WHA

Document 17

Filed 08/01/2008

Page 1 of 2

1 2 3 4 5 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 TRAVELL BROWN, Petitioner, v. ROBERT HOREL, Respondent. / Petitioner Travell Brown filed a petition for writ of habeas corpus in this case pursuant to 28 U.S.C. 2254. On July 15, 2008, this Court denied the petition in its entirety. Judgment was entered in favor of respondent on the same day. On July 25, 2008, petitioner filed a notice of appeal. He now applies for a certificate of appealability under 28 U.S.C. 2253. A district court judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy Section 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 483 (2000). Given this standard, the Court certifies the following issues for appeal: 1. 2. Were petitioner's rights violated by the trial court's joinder of Counts One and Two? Were petitioner's rights violated when he was ordered to appear before the jury in shackles? ORDER GRANTING CERTIFICATE OF APPEALABILITY AND DENYING REQUEST FOR A FEE WAIVER No. C 08-00853 WHA IN THE UNITED STATES DISTRICT COURT

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Case 3:08-cv-00853-WHA

Document 17

Filed 08/01/2008

Page 2 of 2

1 2

3. 4.

Were petitioner's rights violated when the trial court did not provide a specific unanimity instruction? Were petitioner's rights violated when the trial court allegedly expanded the theory of culpability in its instructions to the jury? Did the cumulative effect of these alleged errors deprive petitioner of his rights?

3 4 5. 5 6 7 8 9 10

Petitioner further requests a waiver of the fee. Pursuant to FRAP 3(e), an appellant must pay the district clerk all required fees upon filing a notice of appeal. The docket fee does not need to be paid if: (i) the district court or the appellate court has granted in forma pauperis or Criminal Justice Act status; (ii) an application for in forma pauperis relief or for a certificate of appealability to appeal is pending; or (iii) the appellant (e.g., the government) is exempt by statute from paying the fee. Counsel is supposed to advise the clerk at the time the notice of appeal is filed if one of these conditions exists. The record does not show that any of these conditions exists. Moreover, "a party to a district court action who desires to appeal in forma pauperis must file a motion in the district court." FRAP 24(a). Petitioner has not attached an affidavit showing his inability to pay or to give security for fees and costs, claiming an entitlement to redress, and stating the issues that the party intends to present on appeal in accordance with the Federal Rules of Appellate Procedure. Instead, counsel merely states in an unsworn memorandum that petitioner is an indigent inmate who is being represented pro bono. This is insufficient. Accordingly, the request for a fee waiver is DENIED. The Clerk of the Court shall transmit the file, including a copy of this order, to the Court of Appeals for the Ninth Circuit.

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IT IS SO ORDERED.

Dated: August 1, 2008.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE

2