Cardona v. Quarterman

Filing 9

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE re 8 MOTION for Leave to Proceed in forma pauperis with certificate of trust account filed by Enrique Cardona. The application to proceed informa pauperis [Doc. # 8 ] should be denie d. Petitioner should be ordered to pay the statutory filing fee within 20 days after this recommendation is adopted by thedistrict judge. If he fails to do so, this case should be dismissed without fuither notice. (Signed by Magistrate Judge Jeff Kaplan on 9/8/2008) (mfw)

IN THE UNITEDSTATES DISTRICT COURT NORTHERN DISTRICT TEXAS OF D A L L A SDIVISION ENzuQUE CARDONA
Petitioner, VS. NATHANIEL QUARTERMAN, Director TexasDepartment CriminalJustice, of CorrectionaInstitutions l Division
Respondent.

$ $ $ $ $ $ $ $ $ $ $

NO.3-08-CV-1340-K

F I N D I N G S AND RECOMMENDATION OF THE U N I T E D STATES MAGISTRATE JUDGE Petitioner Enrique Cardona,a Texas prisoner, has filed an application to proceed informa p a u p e r i s in this habeascasebrought under 28 U.S.C. 5 2254. For the reasonsstatedherein,the application should be denied. I. assault.The trial court deferredan adjudication I n 2003,petitionerpled guilty to aggravated of guilt, made an affirmative finding that petitioner used or exhibited a deadly weapon during the for c o m m i s s i o nof an offenseinvolving family violence,andplacedhim on community supervision a period of four years. While on supervision,petitioner was chargedwith a new offense. The state filed a motion to proceed with an adjudication of guilt, which was granted by the trial court assault,revokedhis community following a hearing. The court found petitioner guilty of aggravated wereaffirmed and sentenced to 20 yearsconfinement.His convictionandsentence him supervision, 2005 o n direct appealandupheldon statecollateralreview. Cardonav. S/a/e,No. 05-05-00068-CR, W L 2659947(Tex.App.--Dallas, Oct. 19,2005); Ex parte Cardona, WR-63,393-02 (Tex. Crim.

App. Oct. 17,2007). Petitioner thenfiled this actionin federal districtcourt. Process been has withheldpendinga determination his informa pauperisstatus. of

u.
Thestandardsgoverninginformapauperismotionsaresetforthin23U.S.C. $ l915(a). The district court may authorize the commencementof a civil action without the prepaymentof fees or costs "by a person who submits an affidavit . . . that [he] is unable to pay such fees or give security t h e r e f o r . " 28 U.S.C. $ 1915(a)(l). The court must examinethe financial condition ofthe applicant in order to determinewhether the paymentof feeswould causean undue financial hardship. Prows v . Kastner,842F.2d 138,140(5thCir.),cert.denied,l09S.Ct.364(1988).Theamountofmoney a v a i l a b l eto an inmate in his prison trust accountor from other sourcesshouldbe considered.See (S.D.Tex. 1977). F.Supp.595,601 i d . ; Bradenv. Estelle,428 Petitioner has submitted a certified copy of his inmate trust account statementwhich shows petition is $5.00. 28 t h a t he has $85.17on depositwith prison officials. The filing fee for a habeas that petitioneris ableto pay this fee without causingundue U . S . C . $ l91a(a). The court concludes f i n a n c i a l h a r d s h i p SeeqlsoMlsc.OnpBnl3atJ[ 9(N.D.Tex.Feb. 1,1977) (requiringhabeas . p e t i t i o n e r to pay filing fee if prison accountand other resources exceed$50.00). RECOMMENDATION T h e applicationto proceedinforma pauperis [Doc. #8] shouldbe denied. Petitionershould be orderedto pay the statutoryfiling fee within 20 daysafter this recommendationis adoptedby the d i s t r i c t judge. If he fails to do so, this caseshouldbe dismissedwithout fuither notice. A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objectionsto the recommendationwithin 10 days after b e i n g servedwith a copy. See28 U.S.C. $ 636(bxl); FEo.R. Ctv. P.72(b). The failure to file

written objectionswill bar the aggrieved party from appealingthe factual findings and legal judgethatareaccepted adopted the districtcourt,except c o n c l u s i o nof themagistrate s or by upon groundsofplainerror. SeeDouglassv.UnitedServicesAutomobileAss'n,79F.3d1415,1417(5th C i r . 1996). D A T E D : September 2008. 8,

STATES MAGISTRATEJUDGE