Mitchell v. Houston

Filing 9

MEMORANDUM AND ORDER denying 3 Motion for Leave to Proceed in forma pauperis; Petitioner is granted until October 1, 2009, to pay the $5.00 filing fee. Ordered by Judge Laurie Smith Camp. (Copy mailed to pro se party)(ADB, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA EARL MITCHELL, JR., Petitioner, v. ROBERT HOUSTON, Director Nebraska Dept. of Correctional Services, Respondent. ) ) ) ) ) ) ) ) ) ) ) CASE NO. 4:09CV3174

MEMORANDUM AND ORDER

Petitioner has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 (Filing No. 1), a Motion for Leave to Proceed In Forma Pauperis (IFP) (Filing No. 3), and a certified copy of his trust account information (Filing No. 8). Habeas corpus cases attacking the legality of a person's confinement require the payment of a $5.00 fee. 28 U.S.C. § 1914(a). The court has reviewed the Motion for Leave to Proceed IFP pursuant to 28 U.S.C. § 1915(a)(1)-(2).1 Petitioner's trust account statement shows that he had an average monthly balance of $100 or more in his account for the six-month period immediately preceding the filing of the Petition. (Filing No. 8) For this reason, the court concludes that Petitioner must be required to pay the $5.00 filing fee because he has the financial ability to do so.2 See 28 U.S.C. § 1915(a).

The court recognizes that the provisions of 28 U.S.C. § 1915(b) do not apply to habeas cases. See Malave v. Hedrick, 271 F.3d 1139, 1139-40 (8th Cir. 2001). The court notes a filing fee in the amount of $5 was received in this case on August 12, 2009, but was returned because the Petition had not yet been filed and the Clerk of the court cannot accept filing fees without pleadings. (See Docket Sheet.)
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IT IS THEREFORE ORDERED that: 1. 2. Petitioner's Motion for Leave to Proceed IFP (Filing No. 3) is denied; Petitioner is granted until October 1, 2009, to pay the $5.00 filing fee. Petitioner is warned that if the fee is not paid as required, the court may dismiss this case without further notice; and The Clerk of the court is directed to set a pro se case management deadline in this case using the following text: October 1, 2009: deadline for Petitioner to pay $5.00 filing fee.

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Dated this 1st day of September, 2009. BY THE COURT:

s/Laurie Smith Camp United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court. 2