Byrd v. Lewis

Full title: TIMOTHY LEE BYRD, Petitioner, v. GAIL LEWIS, et al., Respondents

Court: United States District Court, E.D. California

Date published: Aug 22, 2006

No. 2:02-cv-2013-MCE-JFM-P (E.D. Cal. Aug. 22, 2006)

Opinion

No. 2:02-cv-2013-MCE-JFM-P.

August 22, 2006

ORDER

MORRISON ENGLAND JR., District Judge

Petitioner, a state prisoner proceeding pro se, sought relief pursuant to 28 U.S.C. § 2254. Judgment was entered in this action on April 24, 2006. On June 7, 2006, petitioner filed a motion for leave to proceed in forma pauperis on appeal. Good cause appearing, petitioner's motion for leave to proceed in forma pauperis on appeal will be granted.¹

1 Petitioner's initial application for leave to proceed in forma pauperis was denied and petitioner was required to pay the $5.00 filing fee. (December 12, 2002 Order.) Upon reconsideration, that order was affirmed by the district court. (January 8, 2003 Order.) However, the filing fee to proceed in the Ninth Circuit Court of Appeals is $455.00.

On June 7, 2006, petitioner also filed a request for reconsideration of this court's May 19, 2006 order issuing a certificate of appealability as to petitioner's jury instruction claims.² Petitioner asks the court to issue a certificate of appealability as to petitioner's fourth claim that sentencing petitioner under the California Three Strikes Law violated the ban on cruel and unusual punishment. Based on the February 1, 2006 findings and recommendations, this court found petitioner was not entitled to a certificate of appealability as to his fourth claim. (February 1, 2006 Findings and Recommendations at 21-25.) Upon reconsideration, this court affirms the denial of the issuance of certificate of appealability on petitioner's fourth claim. See also Taylor v. Lewis, ___ U.S. ___, ___ S.Ct. ___ (August 15, 2006) (2006 DIDAR 10771) (three strikes sentence of 25 years to life for possession of 0.036 grams of cocaine did not violate the Eighth Amendment).

2 Petitioner's request is timely. The Supreme Court has held that the situation of pro se prisoners seeking to meet court deadlines is unique and that therefore a document may be "filed" on the date that it is given by an inmate to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270-72, 275 (1988). Petitioner presented his document to prison authorities for mailing on May 31, 2006.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's June 7, 2006 motion to proceed in forma pauperis on appeal is granted;

2. Petitioner's June 7, 2006 request for reconsideration is granted; and

3. Upon reconsideration, the May 19, 2006 order is affirmed.