Opinion
3:05-CV-0881-L.
July 28, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for a writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently incarcerated at the Ramsey Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Rosharon, Texas. Respondent is the Director of the TDCJ-CID. No process has been issued in this case.
Findings and Conclusions: On May 25, 2005, the magistrate judge issued an order informing Petitioner that he had $361 in his inmate trust account and, thus, that he had to pay the $5.00 filing fee within thirty days. Miscellaneous Order No. 13 provides in the ninth paragraph that "[a] petitioner whose prison account or other resources exceed fifty ($50.00) dollars must pay appropriate filing fees and may not prosecute a petition in forma pauperis in this District." By letter received June 10, 2005, Petitioner advised the court that the $5 filing fee had been withdrawn from his inmate account and transmitted to the court. As of date of this recommendation, the court has received neither the $5.00 filing fee nor a motion for extension of time to pay the filing fee.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court enter an order denying Petitioner's request to proceed in forma pauperis, filed on April 11, 2005, and directing that the petition be dismissed without prejudice for failure to pay the filing fee.
The Clerk will mail a copy of this recommendation to Petitioner.