Burleson v. California Department of Corrections and Rehabilitation, Director

Filing 25

ORDER by Judge Saundra Brown Armstrong GRANTING 17 Motion for Certificate of Appealability; TERMINATING AS MOOT 20 Motion for Extension of Time to File; GRANTING 22 Motion for Leave to Proceed in forma pauperis. (lrc, COURT STAFF) (Filed on 3/4/2010) Modified on 3/5/2010 (jlm, COURT STAFF). Modified on 3/5/2010 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JESSE CLYDE BURLESON, v. Petitioner, No. C 08-01853 SBA (PR) ORDER GRANTING IN FORMA PAUPERIS STATUS; GRANTING PETITIONER'S REQUEST FOR A CERTIFICATE OF APPEALABILITY; AND TERMINATING REMAINING PENDING MOTIONS AS MOOT (Docket nos. 17, 20, 22)

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, Respondent. _______________________________________/

United States District Court

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For the Northern District of California

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Petitioner, a state prisoner, has filed a notice of appeal of this Court's judgment dismissing as time-barred his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner also seeks a certificate of appealability (COA) pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b). He has also filed an application to proceed in forma pauperis (IFP) on appeal (docket no. 22).1 Because reasonable jurists could disagree with this Court's conclusion that Petitioner's application is time-barred, Petitioner's request for a COA is GRANTED. See, e.g., Thomas v. Greiner, 174 F.3d 260, 261 (2d Cir. 1999) (district court may grant certificate of appealability under 28 U.S.C. § 2253(c) on whether habeas petition is time-barred). For the foregoing reasons, the Court GRANTS Petitioner's request for a COA (docket no. 17). Petitioner's application to proceed IFP on appeal (docket no. 22) is GRANTED. The Clerk of the Court shall forward to the Ninth Circuit Court of Appeals the case file with this Order. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). All remaining pending

Petitioner previously filed a motion for an extension of time to file his application to proceed IFP on appeal (docket no. 20). Because Petitioner has since filed his application to proceed IFP appeal (docket no. 17), his motion for an extension of time is DENIED as moot.

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motions, including his motion for an extension of time to file his application to proceed IFP on appeal (docket no. 20), are terminated as moot. This Order terminates Docket nos. 17, 20 and 22. IT IS SO ORDERED. DATED: 3/2/10 _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

United States District Court

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For the Northern District of California

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JESSE CLYDE BURLESON, Case Number: CV08-01853 SBA Plaintiff, CERTIFICATE OF SERVICE v. DIRECTOR CA DEPT OF CORRECTIONS et al, Defendant. /

United States District Court

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For the Northern District of California

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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 March 4, 2010, 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.

Jesse Clyde Burleson D-90284 Mule Creek State Prison P.O. Box 409020 Ione, CA 95640 Dated: March 4, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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