Gallegos v. Astrue

Filing 18

FILED IN ERROR -- PLEASE DISREGARD.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES,

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United States District Court
For the Northern District of California

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No. C 08-00886 SI

Plaintiff-Respondent,

ORDER

v.
YUSEF STERLING,
Defendant-Petitioner.

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On February 28, 2011, defendant-petitioner Yusef Sterling filed an application to proceed in

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forma pauperis (“IFP”) on appeal. Doc. 44. The same day, Mr. Sterling filed a notice of appeal of a

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November 9, 2010 order denying Mr. Sterling’s Section 2255 motion to vacate, set aside, or correct his

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sentence. Doc. 45.

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The Honorable Vaughn R. Walker presided over Mr. Sterling’s criminal case and denied Mr.

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Sterling’s motion to vacate. Doc. 40. Judge Walker also denied a motion for reconsideration. Doc. 42.

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He neither issued nor specifically declined to issue a certificate of appealability. Judge Walker has since

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retired. Mr. Sterling’s application to proceed in forma pauperis was referred to this Court in its capacity

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as General Duty Judge, along with a request from the court clerk’s office to issue the requisite certificate

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or statement regarding appealability.

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IFP applications are reviewed pursuant to 28 U.S.C. § 1915. The Court must ensure that the

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applicant states cognizable, non-frivolous claims or defenses. Id. § 1915(e)(2)(B). Mr. Sterling’s

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contention in his Section 2255 motion was that the passage of the Fair Sentencing Act into law rendered

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his original sentence illegal. See Doc. 38. The motion was denied because Mr. Sterling entered into

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a plea agreement in which he waived his right collaterally to attack his sentence under Section 2255.

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See Doc. 28 ¶ 5. Mr. Sterling has failed to state a cognizable, non-frivolous claim or defense, and his

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IFP application is DENIED.

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For the same reason, the Court will not issue a certificate of appealability.1 Because reasonable

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jurists would not find the assessment of the issue raised in the motion debatable or wrong, the Court

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declines to issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Mr. Sterling’s application to proceed in forma pauperis is DENIED. Doc. 44. The Court will

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not issue a certificate of appealability. The Clerk shall forward to the court of appeals the case file with

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this order. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

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United States District Court
For the Northern District of California

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IT IS SO ORDERED.

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Dated: April 22, 2011
SUSAN ILLSTON
United States District Judge

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A movant’s right to appeal the denial of his § 2255 motion is governed by 28 U.S.C.
§ 2253(c), which states,
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may
not be taken to the court of appeals from-

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(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the applicant has
made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue
or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c)(1)-(3).
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