Richardson v. Yates

Filing 25

ORDER signed by Judge Frank C. Damrell, Jr. on 04/27/10 ORDERING that petitioner's 21 Motion to Proceed IFP on appeal is DENIED w/o prejudice; plf is advised that he may file an IFP motion in the USCA. Clerk is directed to process petitioner's appeal w/o issuance of COA. (Benson, A.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. JAMES YATES, Respondent. / Petitioner has timely filed a notice of appeal of this court's January 21, 2010 denial of his application for a writ of habeas corpus. On February 3, 2010, the clerk of the court issued a notice indicating that petitioner was required to file a certificate of appealability to pursue his appeal. Petitioner's counsel advised the court that a certificate of appealability is not required in his case because he challenges the propriety of prison discipline rather than a judgment of a state court. Where "the detention complained of arises out of process issued by a State Court," a habeas petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1). A certificate of appealability is therefore "not required when a state prisoner challenges an administrative decision regarding the execution of his sentence." White v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004); see also Rosas v. Nielsen, 428 F.3d 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA FORREST RICHARDSON, Petitioner, No. CIV S-08-2964 FCD EFB P

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1229, 1231 (9th Cir. 2005). "Thus, the district court looks at who made the detention decision complained of by the state prisoner, an administrative body or a judicial one, in determining whether a certificate of appealability is required." Rosas, 428 F.3d at 1231 (internal quotation marks omitted). Here, the target of the petition is not the state court judgment or sentence, but the administrative discipline imposed by prison authorities. Accordingly, petitioner is not required to obtain a certificate of appealability. Petitioner further seeks permission to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a); Fed. R. App. P. 24(a)(1). 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 proceed 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)(1). On February 16, 2010, petitioner filed a declaration stating his inability to pay or to give security for fees and costs. The declaration fails to include many details prescribed by Form 4 of the Appendix of Forms, however. In addition, petitioner has not described the issues he intends to present on appeal. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's July 16, 2009, request to proceed in forma pauperis on appeal is denied without prejudice. The Clerk of the Court is directed to serve a copy of this order on the United States Court of Appeals for the Ninth Circuit, and plaintiff is advised that he may file a motion to proceed in forma pauperis in the United States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(5). 2

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2. The Clerk of the Court is directed to process Petitioner's appeal without the issuance of a certificate of appealability. IT IS SO ORDERED. DATED: April 27, 2010.
_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

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