Jacome v. IRS of California

Opinion

1 2 3 4 5 6 7 10 11 ALEXANDER JACOME, Case No.: 21-CV 2083 JLS (MSB) CDCR #BD-1845, 12 ORDER (1) DENYING MOTION TO Petitioner, 13 PROCEED IN FORMA PAUPERIS v. AND (2) GRANTING MOTION TO 14 AMEND/CORRECT

15 IRS OF CALIFORNIA, et al., 16 Respondents. 17 18 19 20 On December 2, 2021, Petitioner Alexander Jacome (“Petitioner”), a state prisoner 21 proceeding pro se, filed this action pursuant to the All Writs Act, 28 U.S.C. § 1651, but 22 failed to pay the $402 civil filing fee or submit a request to proceed in forma pauperis 23 (“IFP”). See ECF No. 1 (“Pet.”). Petitioner sought a writ of mandate from this Court 24 directing his early release from state custody and requiring payment of his “stimulus 25 money.” Id. at 1–3. 26 On December 16, 2021, the Court dismissed this action without prejudice for failure 27 to satisfy the filing fee requirement. See ECF No. 2. The December 16, 2021 Order 28 / / / 1 instructed Petitioner that he was required either to pay the entire filing fee or to submit a 2 request to proceed IFP on or before January 14, 2022. Id. at 1. 3 On December 28, 2021, Petitioner filed a document titled: “Amended Federal 4 Habeas Corpus 2254. Application to Proceed ‘In Forma Pauperis.’” See ECF No. 3. In 5 this document, Petitioner stated that he wished to have this action construed as a Petition 6 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his state court 7 conviction, and that he has sent a 2254 habeas petition form to the Court. Id. at 1–2. The 8 Court has yet to receive any such habeas petition form from Petitioner. 9 On January 6, 2022, the Court denied Petitioner’s application to proceed IFP because 10 it was not accompanied by the required financial documentation. See ECF No. 4. The 11 Court extended the time for Petitioner either to pay the filing fee or to submit a properly 12 supported IFP application to February 14, 2022. Id. at 2–3. 13 On January 20, 2022, Petitioner filed the instant Motion to Amend/Correct, which 14 requests this action be retitled as a petition for a writ of habeas corpus pursuant to 28 U.S.C. 15 § 2254. See ECF No. 6 (“Mot. to Amend”) at 1. Good cause appearing, the Court 16 GRANTS Petitioner’s Motion to Amend and DIRECTS the Clerk of the Court to amend 17 the docket to indicate this action is brought pursuant to 28 U.S.C. § 2254. 18 On January 20, 2022, Petitioner also filed the instant Motion to Proceed IFP. See 19 generally ECF No. 5 (“IFP Mot.”). The filing fee for a petition for writ of habeas corpus 20 is $5.00, and the action may proceed despite a failure to prepay the entire fee only if leave 21 to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a). See 28 U.S.C. § 1914(a); 22 Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A request from a prisoner to 23 proceed IFP must include a certificate from the warden or other appropriate officer showing 24 the amount of money or securities the petitioner has on account in the institution. See 25 Rule 3(a), 28 U.S.C. foll. § 2254; 28 U.S.C. § 1915(a)(2). Petitioner has failed to submit 26 the required prison certificate. See generally IFP Mot. Accordingly, the Court DENIES 27 Petitioner’s IFP Motion. 28 / / / I CONCLUSION 2 In light of the foregoing, the Court GRANTS Petitioner’s Motion to Amend/Correct 3 ||(ECF No. 6) and DENIES his Motion to Proceed in Forma Pauperis (ECF No. 5). This 4 || action remains DISMISSED WITHOUT PREJUDICE for failure to satisfy the filing fee 5 ||requirement. Petitioner must, on or before February 14, 2022, either: (a) prepay the $5.00 6 || filing fee; or (b) complete and file a Motion to Proceed in Forma Pauperis that complies 7 || with 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2(b). The Clerk of the Court SHALL 8 || PROVIDE Petitioner with this Court’s approved form “Motion and Declaration in Support 9 || of Motion to Proceed in Forma Pauperis.” /f Petitioner fails to timely prepay the filing fee 10 ||or timely complete and submit the enclosed Motion to Proceed in Forma Pauperis, the 11 || Court will enter a final judgment of dismissal. 13 Dated: January 31, 2022 . tt f te 14 on. Janis L. Sammartino 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28