SCHIMMEL v. MCNEIL

Filing 4

ORDER re 1 Petition for Writ of Habeas Corpus, 2 Memorandum in Support filed by BILLY D SCHIMMEL. - - 1. Clerk shall forward petitioner a form for § 2254 cases and an IFP form application. This case number should be writt en on the forms. - - 2. Within thirty (30) days from order date, petitioner shall file Amended Petition as instructed. - - 3. Within same time period, petitioner shall either pay $5.00 filing fee, or submit complete IFP application. - - (Petitio ner's memorandum 2 is Stricken.)* - (Amended Pleadings due by 1/7/2010. - - Habeas Filing Fee due by 1/7/2010 ; Alternatively, IFP Motion due by 1/7/2010. ) - - - Signed by MAGISTRATE JUDGE MILES DAVIS on December 8, 2009.- - (forms to petitioner) (cbj) - - *Modified on 12/11/2009 (to correct docket text as noted) (cbj).

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Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION BILLY D. SCHIMMEL, Petitioner, vs. CASE NO.: 3:09cv534/LC/MD W ALTER MCNEIL. Respondent. _____________________________________________________________________ ORDER This cause is before the court upon referral from the clerk. Petitioner commenced this action by filing a 53-page petition under 28 U.S.C. 2254 (doc. 1) and a 69-page supporting memorandum (doc. 2). Petitioner failed to obtain this court's permission to file these exceedingly long documents. The Local Rules of this court provide: "No petition, complaint, or memorandum may exceed 25 pages absent leave of court upon a showing of good cause." N. D. Fla. Loc. R. 5.1(J)(3). The petition is further deficient because it fails to set forth any claims for relief on the petition form itself, and it further fails to identify the date of the judgment under attack. The court will therefore require petitioner to correct these deficiencies in an amended petition. Petitioner's memorandum will be stricken. To amend his petition, petitioner should completely fill out a new 2254 form, marking it "Amended Petition." Petitioner should ensure that his amended petition complies with both the instructions on the petition form and this court's local rules. Petitioner should state his claims on the form itself as simply and concisely as possible, and facts that are extraneous to his claims should be excluded. Petitioner may add pages to the petition form, if necessary, or exceed the 6-page length of the form, but the total length of the amended petition may not exceed 25 pages. Petitioner must obtain leave of court and show good cause if the proposed amended petition exceeds that page limit. In Page 2 of 2 this regard, the court notes upon cursory review of the original petition that good cause for permitting an over-long petition is not present. As an additional matter, petitioner has neither paid the $5.00 filing fee nor applied for leave to proceed in forma pauperis. Petitioner's case cannot proceed until he either pays the filing fee or files a complete application for leave to proceed in forma pauperis. A complete application includes a motion with supporting affidavit, a prisoner consent form and a financial certificate with account attachments (a printout of the transactions in petitioner's inmate trust account for the six-month period immediately preceding the filing of his petition). Accordingly, it is ORDERED: 1. The Clerk shall forward to the petitioner the form for use in 2254 cases and a form application for leave to proceed in forma pauperis. This case number should be written on the forms. 2. W ithin thirty (30) days of the date of this order, petitioner shall file his amended petition, which shall be typed or clearly written and submitted on the court form as instructed above. 3. W ithin the same time period, petitioner shall either pay the $5.00 filing fee in full, or submit a complete application for leave to proceed in forma pauperis. 4. Petitioner's failure to comply with this order as instructed may result in a recommendation of dismissal of this case. 5. Petitioner's memorandum (doc. 2) is STRICKEN. DONE AND ORDERED this 8th day of December, 2009. /s/ Miles Davis MILES DAVIS UNITED STATES MAGISTRATE JUDGE Case No: 3:09cv534/LC/MD

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