Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Richardson v. Yates

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


April 27, 2010

FORREST RICHARDSON, PETITIONER,
v.
JAMES YATES, RESPONDENT.

ORDER

Petitioner has timely filed a notice of appeal of this court's January 21, 2010 denial of his application for a writ of habeas corpus. On February 3, 2010, the clerk of the court issued a notice indicating that petitioner was required to file a certificate of appealability to pursue his appeal. Petitioner's counsel advised the court that a certificate of appealability is not required in his case because he challenges the propriety of prison discipline rather than a judgment of a state court.

Where "the detention complained of arises out of process issued by a State Court," a habeas petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); see also Fed. R. App. P. 22(b)(1). A certificate of appealability is therefore "not required when a state prisoner challenges an administrative decision regarding the execution of his sentence." White v. Lambert, 370 F.3d 1002, 1010 (9th Cir. 2004); see also Rosas v. Nielsen, 428 F.3d 1229, 1231 (9th Cir. 2005). "Thus, the district court looks at who made the detention decision complained of by the state prisoner, an administrative body or a judicial one, in determining whether a certificate of appealability is required." Rosas, 428 F.3d at 1231 (internal quotation marks omitted). Here, the target of the petition is not the state court judgment or sentence, but the administrative discipline imposed by prison authorities. Accordingly, petitioner is not required to obtain a certificate of appealability.

Petitioner further seeks permission to proceed in forma pauperis on appeal. See 28 U.S.C. § 1915(a); Fed. R. App. P. 24(a)(1). The court file reflects that petitioner paid the filing fee for this action. Rule 24(a) of the Federal Rules of Appellate Procedure provides that a party to a district court action who desires to proceed in forma pauperis on appeal must file a motion in the district court which:

(A) shows in the detail prescribed by Form 4 of the Appendix of Forms the party's inability to pay or to give security for fees and costs;

(B) claims an entitlement to redress; and

(C) states the issues that the party intends to present on appeal. Fed. R. App. P. 24(a)(1).

On February 16, 2010, petitioner filed a declaration stating his inability to pay or to give security for fees and costs. The declaration fails to include many details prescribed by Form 4 of the Appendix of Forms, however. In addition, petitioner has not described the issues he intends to present on appeal.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's July 16, 2009, request to proceed in forma pauperis on appeal is denied without prejudice. The Clerk of the Court is directed to serve a copy of this order on the United States Court of Appeals for the Ninth Circuit, and plaintiff is advised that he may file a motion to proceed in forma pauperis in the United States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(5).

2. The Clerk of the Court is directed to process Petitioner's appeal without the issuance of a certificate of appealability.

IT IS SO ORDERED.

20100427

© 1992-2010 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.