Jackson v. Executive Director of the Department of Corrections of California

Filing 22

ORDER re 20 MOTION for Leave to Appeal in forma pauperis filed by John H. Jackson. Signed by Judge ARMSTRONG on 6/20/12. (lrc, COURT STAFF) (Filed on 6/21/2012)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JOHN HARDY JACKSON,

Case No: C 08-02254 SBA

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Petitioner,
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vs.

ORDER GRANTING PLAINTIFF’S
MOTION TO PROCEED IN
FORMA PAUPERIS ON APPEAL

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EXECUTIVE DIRECTOR OF THE

Dkt. 20

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CALIFORNIA,
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Respondent.
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Through counsel, Petitioner John Hardy Jackson (“Jackson”) filed a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to challenge his 2006

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California state conviction for child molestation. On September 30, 2011, the Court denied

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the petition and entered judgment for Respondent. Dkt. 17, 18. The Court declined to issue

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a certificate of appealability. Dkt. 17 at 16.

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On November 14, 2011, Petitioner’s counsel filed a notice of appeal and a request to

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proceed in forma pauperis “(IFP”) on appeal. Under the IFP statute, “an appeal may not be

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taken in forma pauperis if the trial court certifies in writing that it is not taken in good

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faith.” 28 U.S.C. § 1915(a)(3). “The good faith requirement is satisfied if the petitioner

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seeks review of any issue that is ‘not frivolous.’” Gardner v. Pogue, 558 F.2d 548, 551 (9th

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Cir. 1977) (noting that the test for obtaining a certificate of probable cause (now referred to

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as a certificate of appealability) is “stricter” than a request to proceed IFP on appeal). For

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purposes of section 1915, an appeal is frivolous if it lacks any “arguable basis in law or

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fact.” See Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d

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1221, 1225 (9th Cir. 1984). Here, the Court has found that none of Petitioner’s claims have

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merit. Nonetheless, the Court cannot conclude that his claims are “frivolous” under

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Neitzke. Accordingly,

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IT IS HEREBY ORDERED THAT Petitioner’s request to proceed in forma pauperis
on appeal is GRANTED.
IT IS SO ORDERED.
Dated: June 20, 2012

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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