Case: 09 56073

Case: 09-56073

08/12/2009

Page: 1 of 2

DktEntry: 7024494

FILED UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

RICHARD I. FINE, Petitioner - Appellant, v. SHERIFF OF LOS ANGELES COUNTY; et al.,

AUG 12 2009 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS

No. 09-56073 D.C. No. 2:09-cv-01914-JFW-CW Central District of California, Los Angeles

ORDER

Respondents - Appellees.

Before: KLEINFELD, Circuit Judge. Under Miller-El v. Cockrell, 537 U.S. 322 (2003), appellant need not show that he is probably correct or that there is a substantial likelihood that he is correct in order to obtain a certificate of appealability. A certificate of appealability is required if he demonstrates that reasonable jurists would find the district court's assessment of his constitutional claims “debatable.” (Id. at 338.) Accordingly, appellant is granted a certificate of appealability on the issue of whether the trial judge should have recused himself. See 28 U.S.C. § 2253(c)(3); see also 9th Cir.R.22-1(e).

dk/COA

Case: 09-56073

08/12/2009

Page: 2 of 2

DktEntry: 7024494

A review of this court’s docket reflects that the filing and docketing fees for this appeal remain due. Within 14 days of the filing date of this order, appellant shall (1) pay to the district court the $455.00 filing and docketing fees for this appeal and file in this court proof of such payment or (2) file in this court a motion to proceed in forma pauperis, accompanied by a completed CJA Form 23. Failure to pay the fees or file a motion to proceed in forma pauperis shall result in the automatic dismissal of the appeal by the Clerk for failure to prosecute. See 9th Cir. R. 42-1. The Clerk shall serve a copy of CJA Form 23 on appellant. If appellant pays the fees, the following briefing schedule shall apply: The opening brief is due September 9, 2009; the answering brief is due October 9, 2008; the optional reply brief is due within 14 days after service of the answering brief. If appellant files a motion to proceed in forma pauperis, the briefing schedule will be set upon disposition of the motion. Appellant’s remaining motions and requests will be addressed by separate order.

dk/COA

2

09-56073

Case: 09-56073

08/12/2009

DktEntry: 7024494

FINANCIAL AFFIDAVIT

OCJA 23 Rev. 5/98

Page: 1 of 1

IN SUPPORT OF REQUEST FOR ATTORNEY, EXPERT OR OTHER COURT SERVICES WITHOUT PAYMENT OF FEE IN UNITED STATES G MAGISTRATE G DISTRICT G APPEALS COURT or G OTHER PANEL (Specify below)

IN THE CASE OF

LOCATION NUMBER FOR

*

V.S. AT

PERSON REPRESENTED (Show your full name)

1

*

2 3 4 5

G Felony G Misdemeanor

CHARGE/OFFENSE (describe if applicable & check box ÿ)

6 7 8 9

G G G G G G G G G

Defendant—Adult

DOCKET NUMBERS Magistrate

Defendant - Juvenile Appellant

*

Probation Violator Parole Violator Habeas Petitioner

District Court Court of Appeals

2255 Petitioner Material Witness Other

ANSWERS TO QUESTIONS REGARDING ABILITY TO PAY Are you now employed?

G

Yes

G

No

Am Self-Employed

G

Name and address of employer: EMPLOYMENT

IF YES, how much do you earn per month? $

IF NO, give month and year of last employment How much did you earn per month? $

G

If married is your Spouse employed? IF YES, how much does your Spouse earn per month? $

Yes

G

No If a minor under age 21, what is your Parents or Guardian’s approximate monthly income? $

Have you received within the past 12 months any income from a business, profession or other form of self-employment, or in the form of rent payments, interest, dividends, retirement or annuity payments, or other sources? G Yes G No ASSETS

9

OTHER INCOME

CASH

RECEIVED

IF YES, GIVE THE AMOUNT RECEIVED & IDENTIFY THE SOURCES

SOURCES

$

Have you any cash on hand or money in savings or checking accounts?

G

Yes

G No

IF YES, state total amount $

Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property (excluding ordinary household furnishings and clothing)? Yes No

G

PROPERTY

G

VALUE

MARITAL STATUS

DEPENDENTS

OBLIGATIONS & DEBTS

9

DESCRIPTION

IF YES, GIVE THE VALUE AND $ DESCRIBE IT

9

APARTMENT OR HOME:

DEBTS & MONTHLY BILLS (LIST ALL CREDITORS, INCLUDING BANKS, LOAN COMPANIES, CHARGE ACCOUNTS, ETC.)

SINGLE MARRIED WIDOWED SEPARATED OR DIVORCED

Total No. of Dependents

List persons you actually support and your relationship to them

9 Creditors

9

I certify under penalty of perjury that the foregoing is true and correct. Executed on (date) SIGNATURE OF DEFENDANT (OR PERSON REPRESENTED)

*

Total Debt

Monthly Paymt.

$ $

$

$

$

$

$

$