Jacome v. IRS of California

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA ALEXANDER JACOME, Case No.: 21-CV 2083 JLS (MSB) CDCR #BD-1845, ORDER (1) DENYING MOTION TO Petitioner, 13 PROCEED IN FORMA PAUPERIS v. AND (2) GRANTING MOTION TO AMEND/CORRECT IRS OF CALIFORNIA, et al., 16 Respondents.

20 On December 2, 2021, Petitioner Alexander Jacome (“Petitioner”), a state prisoner proceeding pro se, filed this action pursuant to the All Writs Act, 28 U.S.C. § 1651, but failed to pay the $402 civil filing fee or submit a request to proceed in forma pauperis (“IFP”). See ECF No. 1 (“Pet.”). Petitioner sought a writ of mandate from this Court directing his early release from state custody and requiring payment of his “stimulus money.” Id. at 1–3.

26 On December 16, 2021, the Court dismissed this action without prejudice for failure to satisfy the filing fee requirement. See ECF No. 2. The December 16, 2021 Order / / / instructed Petitioner that he was required either to pay the entire filing fee or to submit a 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 Habeas Corpus 2254. Application to Proceed ‘In Forma Pauperis.’” See ECF No. 3. In this document, Petitioner stated that he wished to have this action construed as a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction, and that he has sent a 2254 habeas petition form to the Court. Id. at 1–2. The 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 it was not accompanied by the required financial documentation. See ECF No. 4. The Court extended the time for Petitioner either to pay the filing fee or to submit a properly 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 requests this action be retitled as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 6 (“Mot. to Amend”) at 1. Good cause appearing, the Court GRANTS Petitioner’s Motion to Amend and DIRECTS the Clerk of the Court to amend 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 generally ECF No. 5 (“IFP Mot.”). The filing fee for a petition for writ of habeas corpus is $5.00, and the action may proceed despite a failure to prepay the entire fee only if leave to proceed IFP is granted pursuant to 28 U.S.C. § 1915(a). See 28 U.S.C. § 1914(a); Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). A request from a prisoner to proceed IFP must include a certificate from the warden or other appropriate officer showing the amount of money or securities the petitioner has on account in the institution. See Rule 3(a), 28 U.S.C. foll. § 2254; 28 U.S.C. § 1915(a)(2). Petitioner has failed to submit the required prison certificate. See generally IFP Mot. Accordingly, the Court DENIES Petitioner’s IFP Motion.

28 / / / I CONCLUSION 2 In light of the foregoing, the Court GRANTS Petitioner’s Motion to Amend/Correct ||(ECF No. 6) and DENIES his Motion to Proceed in Forma Pauperis (ECF No. 5). This || action remains DISMISSED WITHOUT PREJUDICE for failure to satisfy the filing fee ||requirement. Petitioner must, on or before February 14, 2022, either: (a) prepay the $5.00 || filing fee; or (b) complete and file a Motion to Proceed in Forma Pauperis that complies || with 28 U.S.C. § 1915(a)(2) and Civil Local Rule 3.2(b). The Clerk of the Court SHALL || PROVIDE Petitioner with this Court’s approved form “Motion and Declaration in Support || of Motion to Proceed in Forma Pauperis.” /f Petitioner fails to timely prepay the filing fee ||or timely complete and submit the enclosed Motion to Proceed in Forma Pauperis, the || Court will enter a final judgment of dismissal.

12 IT IS SO ORDERED.

13 Dated: January 31, 2022 . tt f te 14 on. Janis L. Sammartino 15 United States District Judge