Opinion
No. CIV S-12-1012 DAD P
04-20-2012
TAHEE ABDULLAH RASHEED, Petitioner, v. VIRGA, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of a request to proceed in forma pauperis or submit the appropriate filing fee.
The court notes that the petition was received by this court on April 17, 2012, accompanied by a letter from California State Prison (CSP) - Sacramento Warden Tim V. Virga stating that it had recently come to his attention that this mail was not delivered to the court and upon learning of this he ensured the mail was promptly delivered. This petition was not the only piece of undelivered mail addressed to the court that has recently been discovered at CSP - Sacramento. The court also notes that the petition in this case reflects that it was signed by petitioner on June 29, 2010. Under the mailbox rule, it is that date which will be deemed the filing date of the petition and not the date this action was finally opened after the delay in mail delivery. See Houston v. Lack, 487 U.S. 266, 276 (1988).
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner shall submit, within thirty days from the date of this order, an affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee; petitioner's failure to comply with this order will result in the dismissal of this action; and
2. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis form used by this district.
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DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE