Ekdahl v. Ayers

Filing 34

ORDER by Judge ARMSTRONG granting 32 Motion for Leave to Appeal in forma pauperis; granting 33 Motion for Leave to Proceed in forma pauperis (lrc, COURT STAFF) (Filed on 1/22/2009)

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.

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

EMIL JOSEPH WILHELM EKDAHL, III, Petitioner,

No. C 07-03642 SBA (PR) ORDER GRANTING REQUEST TO PROCEED IN FORMA PAUPERIS ON APPEAL (Docket nos. 32, 33)

ROBERT AYERS, Warden, Respondent.

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Petitioner 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 construed 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). The Ninth Circuit has 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). Therefore, in an Order dated January 12, 2009, the Court denied Petitioner's request for a certificate of appealability as unnecessary. The Court then directed the Clerk of the Court to process the notice of appeal. Petitioner now moves for leave to proceed in forma pauperis (IFP) on appeal. Petitioner paid the district court filing fee; therefore, he was not proceeding IFP in this Court. He therefore does need permission to proceed IFP on appeal. Rule 24(a)(3) of the Federal Rules of Appellate Procedure, which provides that a party proceeding IFP in district court may continue in that status on appeal unless the district court certifies that the appeal is not taken in good faith, does not apply. Instead, 28 U.S.C. 1915(a)(3), which provides that an appeal may not be taken IFP if the trial court certifies that it is not taken in good faith, applies. § 1915(a)(3) does not turn on whether IFP was granted in district court. 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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In the present case, the Court concludes that the appeal was taken in good faith. Petitioner's declaration in support of his application shows that he qualifies to proceed IFP. Accordingly, good cause appearing, Petitioner's request for leave to proceed IFP on appeal is GRANTED. This Order terminates Docket nos. 32 and 33. IT IS SO ORDERED. DATED: 1/21/09 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA EMIL JOSEPH WILHELM EKDAHL III, Plaintiff, v. AYERS et al, Defendant. /

Case Number: CV07-03642 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 January 22, 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.

Emil J.W. Ekdahl C-79199 San Quentin State Prison 1 Main Street San Quentin, CA 94974 Dated: January 22, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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