Opinion
2:03-CV-0384
February 25, 2004
REPORT AND RECOMMENDATION TO DENY APPLICATION TO PROCEED IN FORMA PAUPERIS and TO DISMISS FOR FAILURE TO PAY FILING FEE
Petitioner DAVID LEYVAS, a prisoner confined in the Neal Unit, has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody. By his habeas application, petitioner appears to challenge his May 22, 2000 parole revocation, the forfeiture of previously accrued good conduct credits, and respondent's failure to credit petitioner's sentence with flat time for the period he was released to mandatory supervision. Petitioner is confined pursuant to a 1985 conviction for the offense of murder out of the 177th Judicial District Court of Harris County, Texas.
Petitioner did not submit with his habeas application any payment to satisfy the requisite filing fee but, instead, submitted an Application to Proceed In Forma Pauperis and a certified in forma pauperis data sheet from the institution in which he is confined. By his request, petitioner seeks permission to proceed with this action without first being required to pre-pay fees and costs or otherwise being required to give security therefor. In his application, petitioner avers he has only received, within the past 12 months, $150.00 from friends. Petitioner's data sheet however, reflects deposits of $200.00 to petitioner's prison account in the preceding 6 months, $150.00 of which was deposited within the prior 3 months, and a balance of $1.43 as of November 12, 2003. The data sheet also reflects petitioner maintained an average balance of $19.22 for the 6 months prior to his filing, with an average deposit per month of $33.33.
Petitioner does not qualify for a grant of pauper's status. Petitioner possesses, has possessed, or has had access to, the funds needed to pay the $5.00 filing fee in the instant cause and should have included such payment with the submission of his application or subsequent to such submission.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that petitioner's "Application to Proceed In Forma Pauperis" be DENIED. It is the further RECOMMENDATION of the Magistrate Judge that the habeas application filed by petitioner DAVID LEYVAS be DISMISSED for failure to pay the $5.00 filing fee.
INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, utilizing the inmate correspondence reply card.
Any party who wishes to object to this Report and Recommendation must do so within fourteen (14) days following the filing date indicated hereon. See 28 U.S.C. § 636(b); Rule8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts. Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
If petitioner pays the $5.00 filing fee within fourteen (14) days after the filing date of this Report and Recommendation, the recommendation of dismissal will be withdrawn. Petitioner is advised, however, that the payment of the filing fee will not guarantee that this Court will reach the merits of petitioner's application.
IT IS SO RECOMMENDED.