Arismendez v. Muniz

Filing 3

ORDER signed by Magistrate Judge Edmund F. Brennan on 6/1/2017 ORDERING Clerk of Court to strike 1 petition from the docket. Petitioner to file signed petition and either pay filing fee or submit completed IFP application within 30 days from the date of this order. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROLANDO ARISMENDEZ, 12 Petitioner, 13 14 v. No. 2:17-cv-1116-EFB P ORDER M.L. MUNIZ, 15 Respondent. 16 Mr. Arismendez is a state prisoner proceeding without counsel. This action was opened 17 18 when he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. 19 However, he has not properly commenced a civil action because the petition is not signed and he 20 has neither paid the filing fee nor sought leave to proceed in forma pauperis. See Fed. R. Civ. P. 21 3; Rule 3, Rules Governing § 2254 Cases; Woodford v. Garceau, 538 U.S. 202, 203 (2003). The court cannot conduct the required review of the petition because Mr. Arismendez has 22 23 not signed it. See ECF No. 1. Rule 11 of the Federal Rules of Civil Procedure requires that 24 “[e]very pleading, written motion, and other paper . . . be signed by at least one attorney of record 25 in the attorney’s name—or by a party personally if the party is unrepresented.” Fed. R. Civ. P. 26 11(a). Because Mr. Arismendez is not represented by counsel and did not sign the petition 27 himself, it will be disregarded. 28 ///// 1 1 If Mr. Arismendez wishes to challenge a judgment of conviction entered against him in 2 state court, he must file a signed application for a writ of habeas corpus using this court’s form 3 petition. In addition, Mr. Arismendez must either file an in forma pauperis affidavit or pay the 4 required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Until Mr. Arismendez submits a 5 signed petition and either pays the filing fee or meets the requirements of 28 U.S.C. § 1915(a), 6 there is simply no case before the court. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The Clerk of the Court shall strike the petition (ECF No. 1) from the docket. 9 2. Within 30 days, Mr. Arismendez shall file a signed petition using the form employed 10 by this court and stating all claims and prayers for relief. 11 3. Within 30 days of the date of this order, Mr. Arismendez shall either pay the $5 filing 12 fee or submit a complete application for leave to proceed in forma pauperis using the 13 form provided. 14 15 16 17 18 4. Mr. Arismendez’s failure to comply with this order may result in this case being closed. 5. The Clerk of the Court is directed to send Mr. Arismendez the court’s form application for writ of habeas corpus and application for leave to proceed in forma pauperis. DATED: June 1, 2017. 19 20 21 22 23 24 25 26 27 28 2

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