Opinion
No. CIV S-12-0119 EFB P
01-26-2012
SIREINO JOE MARTINEZ, Petitioner, v. UNITED STATES OF AMERICA, et al., Respondents.
ORDER
Petitioner, a prisoner without counsel, has filed a petition for a writ of habeas corpus. See 28 U.S.C. § 2241.
A petitioner seeking a writ of habeas corpus either must pay the $5.00 filing fee, see 28 U.S.C. § 1914(a), or request leave of court to proceed in forma pauperis, 28 U.S.C. § 1915(a). Petitioner has neither paid the fee nor submitted an application for leave to proceed in forma pauperis.
Petitioner states in his petition that "Rule 60(b) motions are continuation [sic] of a criminal case, so no docket fee applies. A $5 docket fee has already been paid in this case for the 2241 habeas action in this court." Dckt. No. 1 at 4. It is not clear to the court whether petitioner intends to file a Rule 60(b) motion in a criminal case, as he prominently labels his petition "Habeas Corpus 28 § 2241" and "Class Action Rule 23(a)." Id. at 1. If petitioner intends to file a Rule 60(b) motion, he must file it in his criminal case rather than by way of a separate action.
Within 30 days from the day this order is served, petitioner may submit either the filing fee or the application required by section 1915(a). Petitioner's failure to comply with this order will result in a recommendation that this action be dismissed. The Clerk of the Court is directed to mail to petitioner a form application for leave to proceed in forma pauperis.
So ordered.
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EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE