McCoy v. Curry et al

Filing 5

ORDER OF DISMISSAL; Instructions to Clerk. Signed by Judge Ronald M. Whyte on 2/10/09. (jg, COURT STAFF) (Filed on 2/12/2009)

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*E-FILED - 2/12/09*

THOMAS MCCOY, Petitioner, v. WARDEN B. CURRY, Respondent.

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No. C 09-0058 RMW (PR) ORDER OF DISMISSAL; INSTRUCTIONS TO CLERK

This action was opened when petitioner, a state prisoner proceeding pro se, filed a 28 U.S.C. § 2254 petition on January 7, 2009. Petitioner's letter, also dated January 7, 2009, states that he re-filed the petition because his earlier case, C 08-4687 RMW (PR), was dismissed for failing to pay the filing fee. On December 30, 2008, the court received a $5.00 filing fee in Case No. C 08-4687 RMW (PR), attached to a letter from the Correctional Training Facility in Soledad stating that the failure to submit payment of a filing fee was the fault of the prison system's accounting system, and not the failure of petitioner. As such, on January 23, 2009, the court sua sponte reopened petitioner's case in Case No. C 08-4687 RMW (PR), and ordered respondent to show cause why the petition should not be granted. Accordingly, because the instant case is now duplicative of Case No. C 08-4687 RMW

Order of Dismissal; Instructions to Clerk P:\PRO-SE\SJ.Rmw\HC.09\McCoy058dis.wpd

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(PR), the instant action is DISMISSED. The clerk shall close the file. IT IS SO ORDERED. DATED: 2/10/09 RONALD M. WHYTE United States District Judge

Order of Dismissal; Instructions to Clerk P:\PRO-SE\SJ.Rmw\HC.09\McCoy058dis.wpd

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