Davis v. Hofbauer

Full title: DARNELL DESHAWN DAVIS, Petitioner, v. GERALD HOFBAUER, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Jan 13, 2006

Case Number: 05-CV-74048 (E.D. Mich. Jan. 13, 2006)

Opinion

Case Number: 05-CV-74048.

January 13, 2006

OPINION AND ORDER

PATRICK DUGGAN, District Judge

Petitioner Darnell DeShawn Davis filed a pro se petition for a writ of habeas corpus. Petitioner failed to pay the $5.00 filing fee or an application for leave to proceed in forma pauperis. The Court issued an Order to Correct Deficiency, which directed Petitioner to submit the $5.00 filing fee or an application for leave to proceed in forma pauperis by November 23, 2005. On December 9, 2005, Petitioner had not corrected the deficiency and the Court, therefore, issued an Opinion and Order dismissing the petition without prejudice. Now before the Court are Petitioner's Motions for Reconsideration.

Petitioner seeks reconsideration on the ground that he gave his application for leave to proceed in forma pauperis to prison officials for mailing on November 10, 2005. The Sixth Circuit Court of Appeals has held that the prison mailbox rule of Houston v. Lack, 487 U.S. 266 (1988) applies to habeas corpus petitions. Marshall v. Tyszkiewicz, 2000 WL 924483 (6^th Cir. June 28, 2000). See also Erwin v. Elo, 130 F. Supp. 2d 887, 889 (E.D. Mich. 2001). Under the prison mailbox rule, a habeas petition is considered filed when it is given to a prison official for mailing. Id. Absent evidence to the contrary, a federal court will assume that a prisoner gave his habeas corpus petition to prison officials for mailing on the date that he signed it. Id. In addition to applying the mailbox rule to the filing of habeas petitions, federal courts, including the Sixth Circuit Court of Appeals, have applied the rule to other prisoner filings. See McGore v. Wrigglesworth, 114 F.3d 601, 605 (6^th Cir. 1997) (holding the mailbox rule applies to motion for extension of time to correct filing deficiency);Walker v. City of Lakewood, 35 F.3d 567 (table), 1994 WL 462137 (6^th Cir. Aug. 25, 1997) (applying rule to objections to magistrate's report and recommendation). Petitioner signed and dated his application for leave to proceed in forma pauperis on November 10, 2005. Thus, the Court concludes that, applying the prison mailbox rule, Petitioner timely corrected the deficiency in this matter, and shall grant Petitioner's motion for reconsideration. The Court also shall grant Petitioner's application to proceed in forma pauperis.

Accordingly, IT IS ORDERED that Petitioner's Motions for Reconsideration [Dkt. # 6 # 8] are GRANTED and the habeas corpus proceeding is reopened.

IT IS FURTHER ORDERED that the petition to proceed in forma pauperis is GRANTED. IT IS FURTHER ORDERED that Respondent shall file an answer, in accordance with Rule 5, Rules Governing Section 2254 cases, addressing the merits of the application for a writ of habeas corpus on or before June 10, 2006.