LEATH v. WELLS

Filing 4

ORDER re 1 Petition for Writ of Habeas Corpus filed by DARRELL L LEATH -

  1. Clerk to send Petitioner application to proceed in forma pauperis.
  2. Within THIRTY (30) DAYS Petitioner shall either pay $5.00 filing fee, or submit completed IFP application.
  3. Clerk shall send Petitioner a Section 2254 form, with this case number written on it.
  4. Petitioner shall file "Amended Petition" within THIRTY (30) DAYS from docketing of th is order. Alternatively, petitioner shall file notice of voluntary dismissal.
  • Filing Fee due by 3/18/2007, or IFP Motion due by 3/18/2007.
  • Amended Pleadings due by 3/18/2007.
    Signed by Judge ELIZABETH M TIMOTHY on February 16, 2007.

    (COPY w/forms, mailed to petitioner DARRELL LEATH)
    (cbj)

    LEATH v. WELLS Doc. 4 Case 3:07-cv-00064-MCR-EMT Document 4 Filed 02/16/2007 Page 1 of 2 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION DARRELL LEATH, Petitioner, vs. STATE OF FLORIDA, Respondent. _____________________________/ ORDER This cause is before the court upon Petitioner's filing a handwritten petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 (Doc. 1).1 The court notes that Petitioner has neither applied for leave to proceed in forma pauperis nor paid the filing fee. Before this matter may proceed, Petitioner must either pay the filing fee or obtain leave to proceed in forma pauperis by filing a fully and properly completed application and attachments. Additionally, Petitioner, an inmate in custody pursuant to a state court judgment, failed to use the court-approved form for filing his habeas petition. Local Rule 5.1(J) for the Northern District of Florida states that the court will not accept an for consideration an application for writ of habeas corpus under section 2254 unless the appropriate petition form is properly completed and filed. Thus, Petitioner must file an amended petition on the form for use in section 2254 cases. Petitioner is advised that the amended petition must contain all of his allegations, and it should not in any way refer to the original petition. Once an amended petition is filed, all earlier petitions are disregarded. N.D. Fla. Loc. R. 15.1. The court notes that Petitioner's petition concerns the status of "Jessica and Max." Petitioner requests that "[i]n case Ms. Rhonda Wells goes to prison could [the court] please place Jessica and Max in my family's custody until she gets out. Please do not send these [children] to Duval County[;] they will not do anything about this." Petitioner is advised he may not dispute the custody of minor children in a 2254 action, and the relief he seeks is unavailable in such an action. Therefore, if Petitioner determines that he does not wish to proceed with this habeas action, he shall file a notice of voluntary dismissal. 1 Case No. 3:07cv64/MCR/EMT Dockets.Justia.com Case 3:07-cv-00064-MCR-EMT Document 4 Filed 02/16/2007 Page 2 of 2 Page 2 of 2 Accordingly, it is ORDERED: 1. 2. pauperis. 3. 4. The clerk shall send Petitioner a copy of the form for use in Section 2254 cases. This Within THIRTY (30) DAYS from the date of docketing of this order, Petitioner case number should be written on the form. shall file an amended petition as instructed in this order. Petitioner should completely fill out the new petition form, marking it "Amended Petition." The amended petition should not refer to the original petition. Alternatively, Petitioner shall file a notice of voluntary dismissal within the same time. 5. Petitioner's failure to comply with this order may result in a recommendation of dismissal of this action for failure to comply with an order of the court. DONE AND ORDERED this 16th day of February 2007. The clerk is directed to send to Petitioner an application to proceed in forma pauperis. Within THIRTY (30) DAYS from the date of docketing of this order, Petitioner shall either pay the filing fee of $5.00 or submit a fully completed application to proceed in forma /s/ Elizabeth M. Timothy ELIZABETH M. TIMOTHY UNITED STATES MAGISTRATE JUDGE Case No. 3:07cv64/MCR/EMT
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