Blacher v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARLON BLACHER, Case No. 20cv1611-MMA-AGS 12 Petitioner, ORDER DECLINING TO ISSUE 13 v. CERTIFICATE OF APPEALABILITY 14 RALPH DIAZ; XAVIER BECERRA, 15 Respondents. 16 17 18 19 On August 17, 2020, Petitioner Marlon Blacher, a state prisoner proceeding pro se, 20 filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his 21 2008 murder conviction from the Contra Costa County California Superior Court. See 22 Doc. No. 1. Petitioner also moved for leave to proceed in forma pauperis (“IFP”). See 23 Doc. No. 2. The Court denied Petitioner’s motion for leave to proceed IFP based on 24 Petitioner’s failure to provide the statutorily required information to determine his 25 financial status. See Doc. No. 3 at 2. The Court dismissed the petition without prejudice 26 to Petitioner’s right to proceed with his claims in the proper venue of the United States 27 District Court for the Northern District of California. See id. at 3. The Clerk of Court 28 entered judgment and closed the case. See Doc. No. 4. 1 On September 22, 2020, Petitioner filed a Notice of Appeal. See Doc. No. 5. 2 || Thereafter, the United States Court of Appeals for the Ninth Circuit remanded the case to 3 || this Court “for the limited purpose of granting or denying a certificate of appealability at 4 ||the court’s earliest convenience.” See Doc. No. 7 at 1 (citing 28 U.S.C. §2253(c); Fed. R. 5 || App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997)). 6 Upon due consideration, the Court finds that Petitioner has not shown “that jurists 7 reason would find it debatable whether the district court was correct in its procedural 8 |/ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). As the Court noted in its order of 9 || dismissal, “a request to proceed in forma pauperis made by a state prisoner must include 10 certificate from the warden or other appropriate officer showing the amount of money 11 || or securities Petitioner has on account in the institution.” Doc. No. 3 at 1-2 (citing Rule 12 || 3(a)(2), 28 U.S.C. foll. § 2254; CIVLR 3.2). The Advisory Committee Notes following 13 || Rule 3 explain, “[a] petition must be accompanied by the filing fee prescribed by law 14 || (presently $5; see 28 U.S.C. § 1914(a)), unless leave to prosecute the petition in forma 15 || pauperis is applied for and granted. In the event the petitioner desires to prosecute the 16 || petition in forma pauperis, he must file the affidavit required by 28 U.S.C. § 1915, 17 || together with a certificate showing the amount of funds in his institutional account.” 18 || Petitioner did not provide the statutorily required information and as such, the Court was 19 || obligated to dismiss the petition without prejudice. 20 Accordingly, the Court DECLINES to issue a certificate of appealability. 21 IT IS SO ORDERED. 22 || DATE: October 6, 2020 Vhtt uk Ld = hh 73 HON. MICHAEL M. ANELLO United States District Judge 24 25 26 27 28