Opinion
CASE NO. 5:12-cv-357-MP -GRJ
11-01-2012
CHARLES CLAY SANMANN, Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent.
ORDER
This matter is before the Court on Doc. 1, Petitioner's petition for a writ of habeas corpus. Petitioner is a state prisoner serving a sentence imposed in Leon County, Florida. Petitioner did not file his petition on this District's form for state prisoners challenging their convictions and sentences. Petitioner has neither paid the $5.00 filing fee nor filed a motion for leave to proceed as a pauper. Consideration of the petition will be deferred until Petitioner files an amended petition on the correct form and either pays the $5.00 filing fee or is granted leave to proceed as a pauper.
Accordingly, it is ORDERED:
1. The Clerk shall send Petitioner a blank 28 U.S.C § 2254 petition form for state prisoners and an application for leave to proceed as a pauper.
2. Petitioner shall file his original Amended Petition, together with two identical service copies, on or before December 1, 2012. Failure to comply with this Order within the allotted time will result in a recommendation to the District Judge
that this case be dismissed without further notice.
Petitioner should note that if he fails to respond to this Order and this case is dismissed, any subsequently-filed habeas petition in this Court challenging the same conviction may be barred by the one-year limitation period for filing a habeas petition in the federal courts. See 28 U.S.C. § 2244(d)(1). Although the one-year period is tolled during the time in which a properly filed application for state post- conviction relief is pending, see Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (defining when an application is "properly filed" under 28 U.S.C. § 2244(d)(2)), the time in which a federal habeas petition is pending does not toll the one-year limitation period. See Duncan v. Walker, 533 U.S. 167 (2001) (holding that an application for federal habeas corpus review does not toll the one-year limitation period under § 2244(d)(2)).
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GARY R. JONES
United States Magistrate Judge