Opinion
2:02-CV-0260
November 21, 2002
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On September 12, 2002, petitioner CHARLES WESTERBY filed with this Court a Motion Under 28 U.S.C. § 2255 which this Court construed as a Petition for a Writ of Habeas Corpus by a Person in State Custody. By his habeas application, petitioner appears to challenge the constitutionality of the State's "new DNA law," and complains of the failure of TDCJ-ID to advise petitioner of the results of the "blood work," a violation of the Texas Court of Criminal Appeals' rules, and a lack of evidence to support his conviction for aggravated sexual assault of a child.
Petitioner did not submit with his "application" any payment to satisfy the requisite filing fee, nor did he submit an application to proceed in forma pauperis with a certified in forma pauperis data sheet from the institution in which he is confined. Therefore, on October 29, 2002, the undersigned Ordered petitioner to submit, within twenty (20) days, the proper in forma pauperis request and supporting data sheet, pay the filing fee or provide proper documentation evidencing the authorization of the disbursement of the requisite funds for the fee. Petitioner was warned that his failure to properly supplement or pay the fee within the time allowed by the Orders would result in an immediate recommendation for the dismissal of this cause without further notice.
As of this date, petitioner has not supplemented his petition or paid the filing fee in this cause as directed by the Court's October 29, 2002 Order. Petitioner has disregarded and failed to comply with a direct order from the Court, and for this reason a dismissal is warranted.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner CHARLES WESTERBY be DISMISSED for failure to pay the $5.00 filing fee. It is the further RECOMMENDATION of the Magistrate Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody be DISMISSED for failure to comply with a Court Order.
INSTRUCTIONS FOR SERVICE and NOTIFICATION 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 card.
Any party may object to this Report and Recommendation within fourteen (14) days after its date of filing. — See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in the form of a written pleading entitled "Objections to the 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).