Ausler v. Hernandez

Filing 3

ORDER DISMISSING CASE without prejudice; Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in forma pauperis. If Petitioner wishes to proceed with this case, he must submit, no later than 5/21/07 a copy of this Order with the $5.00 filing fee or with adequate proof of his inability to pay the fee. Additionally, Petitioner has submitted an application for writ of habeas corpus on a non-approved form, and Petitioner did not sign the Petition. A blank motion to proceed in forma pauperis and first amended petition is mailed to Petitioner along with this Order. Signed by Judge Roger T. Benitez on 3/27/07. (aje, )(mam).

Ausler v. Hernandez

Doc. 3

Case 3:07-cv-00473-BEN-NLS

Document 3

Filed 03/28/2007

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. ROBERT HERNANDEZ, Warden, Respondent. PHENENO K. AUSLER, Petitioner, Civil No. 07cv0473-BEN (NLS) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ORDER DISMISSING CASE WITHOUT PREJUDICE

Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, but has failed to pay the $5.00 filing fee and has failed to move to proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to proceed with this case, he must submit, no later than May 21, 2007, a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee. For Petitioner's convenience, a blank motion to proceed in forma pauperis is attached to this Order. Additionally, a Petition for Writ of Habeas Corpus must be submitted in accordance with the Local Rules of the United States District Court for the Southern District of California. See Rule 2(d), 28 U.S.C. foll. § 2254. In order to comply with the Local Rules, the petition must be submitted upon a court-approved form and in accordance with the instructions approved by the Court. Id.; S. D. CAL. CIVLR HC.2(b). Presently, Petitioner has submitted an application for writ

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07cv0473

Dockets.Justia.com

Case 3:07-cv-00473-BEN-NLS

Document 3

Filed 03/28/2007

Page 2 of 2

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of habeas corpus on a non-approved form. Neither has Petitioner signed the Petition. Rule 2(c) of the Rules Governing Section 2254 Cases provides that "[t]he petition must be printed, typewritten or legibly handwritten; and be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242." Rule 2(c), 28 U.S.C. foll. § 2254 (emphasis added). Here, Petitioner has failed to sign the Petition. The Court therefore DISMISSES the action without prejudice to refiling of a "First Amended Petition for Writ of Habeas Corpus," which is on an approved form and signed by Petitioner. The Clerk of Court shall send the proper Southern District of California in forma pauperis and amended petition forms to Petitioner along with this Order. IT IS SO ORDERED. DATED: March 27, 2007 Hon. Roger T. Benitez United States District Judge

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07cv0473