Burns v. United States of America

Filing 4

ORDER denying 3 Motion to Proceed In Forma Pauperis. If Petitioner still wishes to proceed with this lawsuit, Petitioner must pay the $350 filing fee on or before July 2, 2012. If Petitioner fails to do so, the Court will dismiss this case. Signed by Judge Barry Ted Moskowitz on 6/4/2012. (All non-registered users served via U.S. Mail Service)(ecs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT CHARLES BURNS,

Case No. 12cv1075 BTM(WVG)
Petitioner,

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ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS

v.
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UNITED STATES OF AMERICA,
Respondent.

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Petitioner has filed a Petition for a Writ of Audita Querela pursuant to the All Writs Act.
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Petition has also filed a motion to proceed in forma pauperis.
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It appears that Petitioner has sufficient funds in his account to pay the filing fee.
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Therefore, Petitioner’s motion to proceed in forma pauperis is DENIED.
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If Petitioner wishes to proceed with this lawsuit, Petitioner must pay the $350 filing fee
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in full. However, the Court cautions Petitioner that the Ninth Circuit has held that a prisoner
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may not challenge a federal conviction or sentence by way of a petition for a writ of audita
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querela when that challenge is cognizable under § 2255. United States v. Valdez-Pacheco,
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237 F.3d 1077, 1080 (9th Cir. 2001). The fact that the prisoner is precluded from raising his
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claims in a § 2255 motion by the provisions of the Anti-terrorism and Effective Death Penalty
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Act of 1996 that bar successive petitions, does not make the remedy of a writ of audita
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querela available to him. Id.
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12cv1075 BTM(WVG)

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If Petitioner still wishes to proceed with this lawsuit, Petitioner must pay the $350 filing

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fee on or before July 2, 2012. If Petitioner fails to do so, the Court will dismiss this case.

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IT IS SO ORDERED.

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DATED: June 4, 2012

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BARRY TED MOSKOWITZ, Chief Judge
United States District Court

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12cv1075 BTM(WVG)