Harvey v. Curry

Filing 16

ORDER by Judge Saundra Brown Armstrong, GRANTING 14 Motion for Leave to Appeal in forma pauperis and DENYING Request for Certificate of Appealability (lrc, COURT STAFF) (Filed on 4/30/2009) Modified on 5/1/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. BEN CURRY, Warden, ANDREW HARVEY, Petitioner,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C 07-00204 SBA (PR) ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY AS UNNECESSARY; GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS ON APPEAL /

Respondent.

Petitioner has filed a notice of appeal following this Court's denial of his habeas petition challenging as a violation of his constitutional rights the denial of parole by the California Board of Parole Hearings (Board).1 The Court construes the notice of appeal as an application for a certificate of appealability. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997); 28 U.S.C. § 2253(c)(3). He also moves for leave to proceed in forma pauperis on appeal. Petitioner's request for a certificate of appealability is DENIED as unnecessary. The Ninth Circuit recently made clear that a state prisoner challenging the administrative decision by the Board to deny his request for parole need not obtain a certificate of appealability. See Rosas v. Nielsen, 428 F.3d 1229, 1232 (9th Cir. 2005). Good cause appearing, Petitioner's request for leave to proceed in forma pauperis on appeal is GRANTED. The Clerk of the Court shall process the notice of appeal. This Order terminates Docket no. 14. IT IS SO ORDERED. DATED: 4/29/09 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

The Board of Prison Terms was abolished effective July 1, 2005, and replaced with the Board of Parole Hearings. Cal. Penal Code § 5075(a).
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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ANDREW HARVEY, Plaintiff, v. BEN CURRY et al, Defendant. /

Case Number: CV07-00204 SBA CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on April 30, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Andrew G. Harvey C-25646 Correctional Training Facility P.O. Box 689 Soledad, CA 93960-0689 Dated: April 30, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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