Pearce v. Obama et al

Filing 21

ORDER CERTIFYING APPEAL AS NOT TAKEN IN GOOD FAITH. Signed by Judge Phyllis J. Hamilton on 1/18/12. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 1/18/2012)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 PERCY JAMES PEARCE, Petitioner, 8 vs. 9 ORDER CERTIFYING APPEAL AS NOT TAKEN IN GOOD FAITH BARRACK H. OBAMA, President, United States, et al., 11 For the Northern District of California United States District Court 10 No. C 11-0120 PJH (PR) Respondents. 12 / 13 This is a case filed pro se by a federal prisoner. The petition was captioned 14 “Petitioner Pearce’s Petition for a Writ of Mandamus, 28 U.S.C. § 1651; Plaintiff Pearce’s 15 Petition for a Writ of Habeas Corpus, 28 U.S.C. § § 2244(b)(2)(B), 2255(1); or in the 16 Alternative 28 U.S.C. Rule 60(b)(1)(2)(3) Motion.” 17 In the initial review order the court noted that the case is not a proper one for 18 mandamus, that Rule 60(b) of the Federal Rules of Civil Procedure also did not apply, and 19 that it was unclear whether habeas corpus could provide a basis for the claims. The 20 petition was dismissed with leave to amend within thirty days to provide a petition that 21 would “point to a ‘real possibility of constitutional error.’” Rule 4 Advisory Committee Notes 22 (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 1970)). Petitioner was warned that the 23 case would be dismissed if he did not amend within the time allowed. The order dismissing the case with leave to amend was returned as undeliverable; 24 25 nearly a month later petitioner provided notice of his new address. The court instructed the 26 clerk to send a copy of the dismissal with leave to amend to petitioner’s new address, and 27 extended the time to amend. When petitioner did not amend, the case was dismissed. 28 /// 1 Petitioner appealed the dismissal, and the United States Court of Appeals for the 2 Ninth Circuit has remanded the case for a determination whether the appeal is taken in 3 good faith. 4 Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides that a party 5 granted leave to proceed in forma pauperis (“IFP”) in district court may continue in that 6 status on appeal unless the district court certifies that the appeal is not taken in good faith. 7 Section 1915(a)(3) of Title 28 of the United States Code similarly provides that an appeal 8 may not be taken IFP if the trial court certifies it is not taken in good faith. “Not taken in 9 good faith” means “frivolous.” Ellis v. United States, 356 U.S. 674, 674-75 (1958); Hooker v. American Airlines, 302 F.3d 1091, 1092 (9th Cir. 2002) (order) (equating “not taken in 11 For the Northern District of California United States District Court 10 good faith” with “frivolous”). 12 Because the court’s ruling was clearly correct, it is CERTIFIED that this appeal is 13 frivolous and therefore not taken in good faith. The clerk shall forthwith notify plaintiff and 14 the court of appeals of this order. See R.App.P. 24(a)(4). Plaintiff may file a motion for 15 leave to proceed IFP on appeal in the court of appeals within thirty days after service of 16 notice of this action. See R.App.P. 24 (a)(5) Any such motion "must include a copy of the 17 affidavit filed in the district court and the district court’s statement of reasons for its action.” 18 Id. 19 20 IT IS SO ORDERED. Dated: January 18, 2012. PHYLLIS J. HAMILTON United States District Judge 21 22 23 24 25 26 27 28 P:\PRO-SE\PJH\HC.11\PEARCE0120.APP.wpd 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?