Free Order - District Court of California - California

Case 3:08-cv-02883-MMC

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Filed 08/01/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) Petitioner, ) ) v. ) ) TOM CAREY, ) ) Respondent. _______________________________ ) LE ANDRE JOHNSON, No. C 08-2883 MMC (PR) ORDER DIRECTING PETITIONER TO COMPLY WITH FILING-FEE REQUIREMENTS; DIRECTIONS TO CLERK

On June 9, 2008, petitioner, a California prisoner proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. That same date, the Court notified petitioner in writing that the action was deficient due to petitioner's failure to pay the requisite filing fee or, instead, to submit a completed courtapproved in forma pauperis ("IFP") application. In said notice, petitioner was advised that his failure to pay the filing fee or, alternatively, to file a completed IFP application, within thirty days, would result in dismissal of the action. Along with said notice, petitioner was sent a copy of the court-approved prisoner's IFP application, instructions for completing it, and a return envelope. More than thirty days have passed since the deficiency notice and petitioner has neither filed a completed IFP application nor paid the filing fee. Although petitioner has not responded to the Court's deficiency notice, an attachment to the petition herein shows that petitioner is seeking to have the filing fee in this matter waived. Specifically, attached to the last page of the petition is a letter dated May 27, 2008, from petitioner to the Clerk of Court, in which letter petitioner states that he is refiling an earlier petition, Johnson v. Sisto, C 07-5187 MJJ (PR), that was dismissed on November 28, 2007, due to petitioner's failure to either pay the filing fee or

Case 3:08-cv-02883-MMC

Document 3

Filed 08/01/2008

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file a completed IFP application in that matter. Petitioner states he did in fact pay the filing fee in C 07-5187, but the fee was not received by the Clerk until after the case was dismissed; therefore, petitioner asks to have the filing fee he paid in C 07-5187 applied to the instant action. Attached to the letter is a copy of a receipt from the Clerk showing that the $5.00 filing fee was paid in C 07-5187 on December 7, 2007. Petitioner's request for waiver of the filing fee in the instant action will be denied. Case C 07-5187 was properly dismissed due to petitioner's failure to comply with the court's filing-fee requirements in a timely manner. Petitioner did not move to reopen the case after he paid the filing fee; thus, C 07-5187 remains closed, and petitioner is now proceeding with his petition in a new and separate action in which he must comply with the court's filing-fee requirements. Accordingly, although the instant action is subject to dismissal due to petitioner's failure to respond to the deficiency notice, the Court will provide petitioner one further opportunity to comply with the court's filing-fee requirements, either by paying the requisite filing fee in this matter or submitting a court-approved IFP application showing he is unable to pay the fee. Petitioner's failure to do so will result in the dismissal of this action without prejudice. CONCLUSION In light of the foregoing, the Court orders as follows: Within twenty days of the date this order is filed, petitioner shall either pay the filing fee in this matter or submit a completed court-approved prisoner's IFP application. Petitioner's failure to do so will result in the dismissal of this action without prejudice. The Clerk shall send petitioner a court-approved prisoner's IFP application, instructions for completing it, and a return envelope. IT IS SO ORDERED. DATED: August 1, 2008 MAXINE M. CHESNEY United States District Judge
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