Opinion
Case No. 5:08cv374/MCR/EMT.
May 14, 2009
ORDER
Petitioner initiated this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). This cause is now before the court upon Petitioner's "Motion to Proceed" (Doc. 9), which shall be construed as a motion to reconsider. Petitioner requests that this court reconsider the order issued on January 14, 2009, which directed Petitioner to either pay the filing fee of $5.00 or obtain leave to proceed in forma pauperis ("IFP") by filing a fully and properly completed application and attachments ( see Doc. 3).
Petitioner contends, pursuant to the authority of Schmidt v. Crusoe, 878 So. 2d 361 (Fla. 2003) (holding that prisoner's gain time challenge was a "collateral criminal proceeding" to which Fla. Stat. § 57.085, Florida's Prisoner Indigency Statute, did not apply) and Turner v. McDonough, 949 So. 2d 1106 (1st DCA 2007) (same), that he should be exempted from the requirement that he pay the filing fee in the instant case. However, the cases cited by Petitioner concern collateral criminal proceedings filed in the state courts of Florida, not habeas corpus proceedings filed in the federal courts. Indeed, Rule 3 of the Rules Governing Section 2254 Cases in the United States District Courts states that a habeas petition must be accompanied by the applicable filing fee or a properly completed motion for leave to proceed IFP.
Petitioner has failed to show that the order issued January 14, 2009, was clearly erroneous or contrary to law; therefore, the motion for reconsideration shall be denied. Petitioner is advised that he may obtain review of an order of this court on any pretrial matter by filing a motion for reconsideration with the district court, pursuant to 28 U.S.C. § 636(b)(1)(A), in which he must show that this court's order was clearly erroneous or contrary to law.
Accordingly, it is ORDERED:
1. Petitioner's "Motion to Proceed" (Doc. 9), construed as a motion for reconsideration, is DENIED.
2. Petitioner shall either pay the filing fee of $5.00 or submit a fully completed application to proceed in forma pauperis as previously ordered by the court ( see Doc. 3); however, Petitioner shall be given an extension of time to JUNE 12, 2009 to submit the fee or application.
3. Petitioner's failure to timely comply with this order may result in a recommendation that this action be dismissed for failure to comply with an order of the court.