COLLINS v. FOLINO et al

Filing 3

ORDER re 1 Motion for Leave to Proceed in forma pauperis filed by CARL LEE COLLINS. The IFP Motion is DENIED; however, in an abundance of caution, the Court STAYS until August 30, 2013, that portion of this Order which denies Petitioner's IF P Motion. The Stay will automatically be dissolved at the end of the thirty days and if no filing fee has been received by the end of the thirty days, the Court will order the case closed for failure to prosecute. Signed by Magistrate Judge Cynthia Reed Eddy on 07/31/2013. (bsc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
CARL LEE COLLINS,
Petitioner,
v.
SUPERINTENDENT FOLINO and
THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA
Respondents.

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Civil Action No. 2: 13-cv-0852
United States Magistrate Judge
Cynthia Reed Eddy

ORDER
Carl Lee Collins (“Petitioner”) has filed a Motion for Leave to Proceed In Forma
Pauperis (“the IFP Motion”) in order to prosecute a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2254 (ECF No. 1). Whether to grant or deny the IFP Motion is committed to the
sound discretion of the District Court. See Cotto v. Tennis, 369 F. App’x 321, 322 (3d Cir. 2010)
(“We review the denial of leave to proceed IFP for abuse of discretion.”). Furthermore, it is
Petitioner’s burden to prove entitlement to IPF status. White v. Gregory, 87 F.3d 429, 320 (10th
Cir. 1996); In re Lassina, 261 B.R. 614, 618 (E.D. Pa. 2001) (“The applicant bears the burden of
proving her entitlement to IFP relief by a preponderance of the evidence.”) In the sound exercise
of its discretion and after reviewing the IFP Motion, the Court finds that Petitioner has not met
his burden to show entitlement to IFP status. The IFP motion and attachments show that
Petitioner has sufficient funds available to him in order to pay the $5.00 filing fee and Petitioner
has not shown that paying the $5.00 filing fee would “force [him] to abandon what may be a
meritorious claim in order to spare himself complete destitution.” Cotto, 369 F. App’x at 322

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(quoting Jones v. Zimmerman, 752 F.2d 76, 79 (3d Cir. 1985)). Accordingly, the IFP Motion is
DENIED.

Hence, Petitioner is ORDERED to pay the $5.00 filing fee on or before August 30,
2013.
In an abundance of caution, this Court STAYS until August 30, 2013, that portion of this
Order which denies Petitioner’s IFP Motion. The Court does so out of a concern for the Statute
of Limitations contained in the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2244(d) and its potential impact on the timeliness of the Petition. The filing and the
pendency1 of an IFP Motion tolls the running of the statute of limitations. See, e.g., Urrutia v.
Harrisburg County Police Dept., 91 F.3d 451, 459 (3d Cir. 1996) (“This is a matter of first
impression in this Circuit, but other courts have suspended the running of the statute of
limitations during the pendency of an in forma pauperis motion.”). To obviate any concerns
about the running of the AEDPA statute of limitations, the Court’s entering of this Stay of the
Order denying the IFP Motion will provide the Petitioner with thirty days in which to pay the
$5.00 filing fee. The Court deems that the effect of this Stay is to permit the IFP Motion to
continue pending during these thirty days and hence, the AEDPA statute of limitations is tolled
during these thirty days. The Stay will automatically be dissolved at the end of the thirty days

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Once the court renders a decision on the IFP motion, it no longer is pending and no longer tolls
the statute of limitations.
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and if no filing fee has been received by the end of the thirty days, the Court will order the case
closed for failure to prosecute.
BY THE COURT:
s/Cynthia Reed Eddy
United States Magistrate Judge
cc:

Candace Cain
Federal Public Defender's Office
Email: [e-mail]

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