Opinion
Case No. 3:07-cr-081, Also Case No. 3:10-cv-297.
August 18, 2010
ORDER
This case is before the Court on Petitioner's Objections (Doc. No. 859) to the Magistrate Judge's Report and Recommendations (Doc. No. 855).
Petitioner's initial pleading (Doc. No. 854) is styled "Petition for Writ of Audita Querela Pursuant to Title 28 U.S.C. § 1651." The Clerk characterized it as a motion to vacate sentence under 28 U.S.C. § 2255 and applied that caption to it on the docket, probably because Petitioner sent it in with the above criminal docket number on it and did not send either a filing fee or an application for leave to proceed in forma pauperis.
Petitioner quite correctly points out (Objections, Doc. No. 859, PageID 5624) that the Petition cannot properly be construed as a § 2255 Motion. Castro v. United States, 540 U.S. 375 (2003), is directly in point. Petitioner says that if the Court "concludes that it should proceed with the Petition which would require filing in forma pauperis or payment of the filing fee, it should order the Petitioner to do so." Id. at PageID 4625.
In order to proceed in any case in federal court, a party must pay the filing fee or obtain leave of court to proceed without doing so. Accordingly, it is hereby ORDERED:
in forma pauperis in forma pauperis. 28 U.S.C. § 2255
1. The Clerk shall furnish Petitioner with the form needed for a prisoner to apply for status. 2. Petitioner shall return the form or the filing fee of $350 for a civil case not later than September 1, 2010. 3. The case is STAYED pending payment of the filing fee or approval of the application to proceed 4. All further filings herein shall be docketed under Case No. 3:10-cv-297. The Clerk shall correct the docket in the above criminal case to remove the characterization of the Petition as made under .