Michael McCollum v. State of Nevada

478 F. App'x 444

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 12, 2012
• Docket: 11-17281
• Status: Unpublished

Opinion

MEMORANDUM **

Michael Jay McCollum, a Nevada state prisoner, appeals pro se from the district court’s judgment dismissing, for failure to pay a filing fee or submit an application to proceed in forma pauperis, his petition for writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. James v. Madison St. Jail, 122 F.3d 27, 28 (9th Cir.1997) (per curiam). We vacate and remand.

A review of the record indicates that the district court incorrectly processed McCol-lum’s habeas petition as a civil rights complaint. We remand for the district court to process his filing in the first instance as a habeas petition, and to notify him that the filing fee in a habeas case is $5. We express no opinion on the merits or timeliness of the habeas petition.

The district court is instructed on remand to refund the $455 appellate docketing fee to McCollum.

McCollum’s “Motion to Amend,” filed on October 6, 2011, “Motion of Discovery,” filed on March 19, 2012, and “Motion for Expedition,” filed on July 2, 2012, are denied as moot.

VACATED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.