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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CARL McCEE FOUNTAIN,

Petitioner, No. CIV S-04-2350 GEB DAD P

vs.

JAMES YATES, Warden, 

Respondent. ORDER

 /

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of

this court's July 24, 2006, denial of his application for a writ of habeas corpus. Before petitioner

can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R.

App. P. 22(b).

A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). The certificate of appealability must “indicate which specific issue or issues

satisfy” the requirement. 28 U.S.C. § 2253(c)(3).

A certificate of appealability should be granted for any issue that petitioner can

demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different 

/////

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 Except for the requirement that appealable issues be specifically identified, the standard 1

for issuance of a certificate of appealability is the same as the standard that applied to issuance of

a certificate of probable cause. Jennings, at 1010.

2

court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford,

290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

1

Petitioner has made a substantial showing of the denial of a constitutional right in

the following issues presented in the instant petition: (1) whether his trial and appellate counsel

rendered ineffective assistance; (2) whether the evidence was insufficient to support his

conviction on the charge of burglary; and (3) whether his sentence constitutes cruel and unusual

punishment. 

Petitioner has also filed a request to proceed in forma pauperis on appeal. The

court file reflects that petitioner paid the filing fee for this action. 

Rule 24(a) of the Federal Rules of Appellate Procedure provides that a party to a

district court action who desires to appeal in forma pauperis on appeal must file a motion in the

district court which:

(A) shows in the detail prescribed by Form 4 of the Appendix of

Forms the party’s inability to pay or to give security for fees and

costs;

(B) claims an entitlement to redress; and

(C) states the issues that the party intends to present on appeal.

Fed. R. App. P. 24(a)(2). If the party is a prisoner, he must attach a statement certified by the

appropriate institutional officer showing all receipts, expenditures, and balances during the last

six months in his institutional accounts. Appendix of Forms, Form 4, item 5. Petitioner has

attached an uncertified trust account statement for the period April 1, 2006 through May 18,

2006. That statement does not comply with the requirements of Fed. R. App. P. 24(a)(2) and

Form 4 of the Appendix of Forms. Accordingly, petitioner’s request to proceed in forma

pauperis on appeal will be denied.

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Petitioner has also filed a motion for reconsideration of this court’s July 24, 2006,

order adopting the findings and recommendations of the magistrate judge. That motion will be

denied.

Accordingly, IT IS HEREBY ORDERED that:

1. A certificate of appealability is issued in the present action;

2. Petitioner’s motion to proceed on appeal in forma pauperis is denied; and

3. Petitioner’s motion for reconsideration is denied.

Dated: August 28, 2006

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

Case 2:04-cv-02350-GEB-DAD Document 52 Filed 08/28/06 Page 3 of 3