Jackson v. California Board of Parole Hearings

Filing 29

ORDER signed by District Judge Kimberly J. Mueller on 8/23/16 ORDERING that petitioner's 28 motion to proceed in forma pauperis is DENIED without prejudice. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHNNY CLIFFORD JACKSON,

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Petitioner,

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No. 2:15-cv-0609 KJM KJN P

v.

ORDER

CALIFORNIA BOARD OF PAROLE
HEARINGS,
Respondent.

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Petitioner is a state prisoner proceeding without counsel with an application for a writ of

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habeas corpus under 28 U.S.C. § 2254. Petitioner’s application was filed in this court on March

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18, 2015. ECF No. 1. On March 24, 2015, the magistrate judge directed petitioner to either file

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an in forma pauperis application or pay the $5.00 filing fee required to file a habeas corpus

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petition in a federal district court. ECF No. 4. On April 9, 2015, petitioner paid the $5.00 filing

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fee. On September 3, 2015, the magistrate judge recommended that this action be dismissed

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because the instant petition is successive to petitioner’s claims raised in Case No. 2:10-cv-2341

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LKK CKD. (ECF No. 19.) On February 5, 2016, the undersigned adopted the recommendation,

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granted respondent’s motion to dismiss, and denied petitioner’s motion for certificate of

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appealability. (ECF No. 22.) On March 7, 20161, petitioner filed a motion for a certificate of

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This is the date on which the motion was delivered to prison officials for mailing and is deemed
the filing date. See Houston v. Lack, 487 U.S. 266 (1988).
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appealability addressed to the United States Court of Appeals for the Ninth Circuit. ECF No. 24.

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On March 31, 2016, that motion was processed as a notice of appeal to the Ninth Circuit. ECF

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No. 25. On April 25, 2016, petitioner filed a motion to proceed in forma pauperis on appeal.

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ECF No. 28. Petitioner’s appeal is still pending. See USCA Case Number 16-15559.

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An indigent party who cannot afford the expense of pursuing an appeal may file a motion

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for leave to proceed in forma pauperis. See Fed. R. App. P. 24(a); 28 U.S.C. § 1915(a)(1).

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Pursuant to Federal Rule of Appellate Procedure 24(a), “a party to a district-court action who

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desires to appeal in forma pauperis must file a motion in the district court.” The party must attach

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an affidavit that (1) shows in detail “the party’s inability to pay or give security for fees and

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costs,” (2) “claims an entitlement to redress,” and (3) “states the issues that the party intends to

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present on appeal.” Fed. R. App. P. 24(a)(1).

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“However, even if a party provides proof of indigence, ‘an appeal may not be taken in

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forma pauperis if the trial court certifies in writing that it is not taken in good faith.’” Morales v.

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Tingey, 2013 WL 685208, *1 (N.D. Cal. Feb. 25, 2013) (quoting 28 U.S.C. § 1915(a)(3)). Such

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appeal is taken in “good faith” where it seeks review of any issue that is “nonfrivolous.” Hooker

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v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002); see also Huffman v. Boersen, 406

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U.S. 337, 339 (1972) (“In the federal system, ‘good faith’ has ‘been defined as a requirement that

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an appeal present a non-frivolous question for review.’”) (quoting Cruz v. Hauck, 404 U.S. 59, 62

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(1971) (Douglas, J., concurring)). In turn, an issue is frivolous if it has “no arguable basis in fact

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or law.” O’Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990).

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Review of petitioner’s application to proceed in forma pauperis reflects that petitioner is

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indigent. The application itself does not contain an affidavit in which petitioner “claims an

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entitlement to redress” and ‘states the issues that the party intents to present on appeal.” Fed. R.

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App. P. 24(a)(1). However, review of petitioner’s motion for a certificate of appealability shows

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that petitioner intends to contend on appeal that this court erred in dismissing his habeas petition

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on statute of limitations grounds and as a successive petition. This court dismissed petitioner’s

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habeas petition without prejudice as a successive petition and expressly declined to reach the

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statute of limitations issue. See ECF Nos. 19, 22. The petition to which the current petition is
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successive was dismissed as time-barred. See ECF No. 19 at 4. Petitioner’s contention that the

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instant petition was dismissed as barred by the statute of limitations is factually incorrect, and his

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contention that the petition is not successive has no arguable basis in fact or law. For these

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reasons, this court will deny the motion to proceed in forma pauperis filed in this court.2

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma

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pauperis (ECF No. 28) is denied without prejudice.

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DATED: August 23, 2016

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UNITED STATES DISTRICT JUDGE

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Court records show that a motion to proceed in forma pauperis on appeal was filed on April 27,
2016 in the Ninth Circuit. See ECF No. 2, USCA Case Number 16-15559. This court’s order is
without prejudice to any ruling by the Court of Appeals on the motion filed in that court.
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