Yasir Mehmood v. Unknown

Filing 19

ORDER signed by Judge Kimberly J. Mueller on 12/17/14 DENYING 17 Motion to Proceed IFP without prejudice. (Manzer, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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YASIR MEHMOOD,

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No. 2:13-cv-02461 KJM DAD P

Petitioner,

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v.

ORDER

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UNKNOWN,
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Respondent.

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Although earlier orders have characterized petitioner as a state prison inmate

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proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254, he is in

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federal custody, proceeding in pro per, awaiting trial in United States v. Mehmood, No. 2:12-cr-

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0154 JAM. This action appears to be a writ of habeas corpus under 28 U.S.C. § 2241, claiming

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the case against him is overcharged. See Pet., ECF No. 1.
Petitioner filed his pleading on October 25, 2013 in the Northern District, which

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transferred the case to this court on November 22, 2013. ECF Nos. 1, 4.
On December 4, 2013, the court directed petitioner to file an affidavit in support of

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his request to proceed in forma pauperis. ECF No. 7. Several communications sent to petitioner

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were returned and petitioner did not file any supporting documentation for the request to proceed

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in forma pauperis. On February 20, 2014, the magistrate judge assigned to the case

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recommended dismissal for failure to prosecute. ECF No. 8. This court adopted this

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recommendation on April 1, 2014, and ordered the Clerk to close the case. ECF No. 9.

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On July 21, 2014, petitioner filed a motion to reopen the time for filing an appeal.

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ECF No. 11. He explained he had been in a facility in Seattle for a mental health evaluation and

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did not receive the findings and recommendation or judgment. Id. at 1-2.

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The court granted the request and allowed petitioner to appeal. ECF No. 13.

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Petitioner filed his notice of appeal on August 28, 2014, and filed a request to proceed in forma

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pauperis on September 22, 2014. ECF Nos. 14, 17.

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Under Rule 24(a) of the Federal Rules of Appellate Procedure, a party who wishes

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to appeal in forma pauperis must file a motion in the district court, supported by an affidavit

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showing his inability to pay the fees and costs, claiming an entitlement to redress, and stating the

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issues to be pursued on appeal. Petitioner has filed an affidavit showing his inability to pay, but

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has not listed the issues he will raise on appeal. ECF No. 17. Accordingly the court denies the

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motion without prejudice.

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In light of petitioner’s explanation that he did not receive the court’s earlier orders,

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the court would be inclined to vacate the judgment and consider the affidavit filed in connection

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with the current motion as his request to proceed in forma pauperis with this action. It cannot do

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so, however, because the notice of appeal has removed this court’s jurisdiction over the subject of

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the appeal. Davis v. United States, 667 F.2d 822, 824 (9th Cir. 1982). Should petitioner dismiss

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the appeal, this case could move forward.

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IT IS THEREFORE ORDERED that petitioner’s motion to proceed in forma

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pauperis on appeal is denied without prejudice.

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DATED: December 17, 2014.

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UNITED STATES DISTRICT JUDGE

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