Opinion
No. 3-05-CV-1433-B.
August 17, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner John Thomas Bagley, appearing pro se, has filed an application to proceed in forma pauperis in this habeas case brought under 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was convicted of delivery of a controlled substance and sentenced to 23 years confinement. His conviction and sentence were affirmed on direct appeal and state collateral review. Bagley v. State, No. 05-93-01539-CR (Tex.App.-Dallas, Dec. 22, 1994, pet. ref'd); Ex parte Bagley, No. 29,392-01 (Tex.Crim.App. Oct. 4, 1995); Ex parte Bagley, No. 29,392-02 (Tex.Crim.App. Feb. 7, 1996). Petitioner also filed multiple applications for federal habeas relief. His first application was dismissed on limitations grounds. Bagley v. Johnson, No. 3-98-CV-0663-P (N.D. Tex. Sept. 8, 1998), COA denied, No. 98-11145 (5th Cir. Mar. 15, 1999). Three other federal writs were dismissed as successive. Bagley v. Johnson, No. 3-99-CV-2357-G (N.D. Tex. Feb. 23, 2000); Bagley v. Dretke, No. 3-03-CV-1923-K (N.D. Tex. Oct. 14, 2003); Bagley v. Dretke, No. 3-03-CV-1731-D (N.D. Tex. Dec. 31, 2003), COA denied, No. 04-10228 (5th Cir. Oct. 21, 2004). Undeterred, petitioner now seeks federal habeas relief for a fifth time. Process has been withheld pending a determination of the 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 $110.48 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 September 19, 2005. If he fails to do so, this case should be dismissed without further notice.
A copy of this report and recommendation shall be served on all parties in the manner provided by law. Any party may file written objections to the recommendation within 10 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).