Opinion
No. 3-05-CV-0940-K.
May 12, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Jerry Joe Tubbleville, appearing pro se, has filed an application to proceed in forma pauperis in this habeas case brought under 28 U.S.C. § 2241. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted of various drug distribution offenses and a related charge of using or carrying a firearm during and in relation to a drug trafficking crime. Punishment was assessed at 272 months confinement. His conviction and sentence were affirmed on direct appeal. United States v. Tubbleville, 90-3269 (5th Cir. Nov. 7, 1990). Petitioner also filed a motion to correct, vacate, or set aside his sentence under 28 U.S.C. § 2255. The motion was denied. United States v. Tubbleville, No. 89-269-CR (E.D. La. Jun. 19, 1991). The Fifth Circuit recently denied leave to file a successive section 2255 motion. In re Tubbleville, No. 05-30270 (5th Cir. Apr. 19, 2005).
In an apparent attempt to circumvent that ruling, petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241. Process has been withheld pending a determination of his application to proceed in forma pauperis.
II.
The standards governing in forma pauperis motions are set forth in 28 U.S.C. § 1915(a). The district court may authorize the commencement of a civil action without the prepayment of fees or costs "by a person who submits an affidavit . . . that [he] is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). The court must examine the financial condition of the applicant in order to determine whether the payment of fees would cause an undue financial hardship. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir.), cert. denied, 109 S.Ct. 364 (1988). The amount of money available to an inmate in his prison trust account or from other sources should be considered. See id.; Braden v. Estelle, 428 F.Supp. 595, 601 (S.D. Tex. 1977).Petitioner has submitted an affidavit in support of his application to proceed in forma pauperis. A statement of his inmate trust account is attached. The record shows that petitioner has $57.90 on deposit with prison officials. The filing fee for a habeas petition is $5.00. 28 U.S.C. § 1914(a). The court concludes that petitioner is able to pay this fee without causing undue financial hardship. See also MISC. ORDER 13 at ¶ 9 (N.D. Tex. Feb. 1, 1977) (requiring habeas petitioner to pay filing fee if prison account and other resources exceed $50.00).
RECOMMENDATION
The application to proceed in forma pauperis should be denied. Petitioner should be ordered to pay the statutory filing fee by June 10, 2005. If he fails to do so, this case should be dismissed without further notice.