Opinion
No. 3-02-CV-0613-M
April 12, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Daniel Anaya Sanchez has filed a motion for leave to proceed in forma pauperis in this habeas case. The motion has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court.
I.
Petitioner challenges his conviction for delivery of cocaine and resulting 35-year sentence in an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his sole ground for relief, petitioner contends that he received ineffective assistance of counsel. Process has been withheld pending a determination of the motion for leave 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 costs 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 motion for leave to proceed in forma pauperis. A statement of his inmate trust account is attached. The record shows that petitioner has $207.29 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.
RECOMMENDATION
The motion for leave to proceed in forma pauperis should be denied. Petitioner should be ordered to pay the statutory filing fee by May 14, 1002 . If he fails to do so, this case should be dismissed.