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)

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