Thornton v. Wolcott

• Court: District Court, W.D. New York
• Decided: December 5, 2024
• Docket: 6:24-cv-06697
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

BRANDON THORNTON, Petitioner, ve 24-CV-6697-MAV ORDER J. WOLCOTT, Respondent.

INTRODUCTION Pro se Petitioner, Brandon Thornton, is a prisoner incarcerated at the Attica Correctional Facility. Petitioner has filed a Petition for a writ of habeas corpus under 28 U.S.C. § 2254, ECF No. 1, but he did not pay the filing fee. Petitioner did submit a financial affidavit in application to proceed in forma pauperis. ECF No. 2. But his request is incomplete because he did not include the required certification of his inmate trust fund account. DISCUSSION | The filing fee for a petition for a writ of habeas corpus is $5.00. 28 U.S.C. § 1914(a). Whenever a prisoner submits a petition for a writ of habeas corpus, the prisoner must either (1) pay the filing fee or (2) seek leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a)(1); Rule 3(a) of the Rules Governing Section 2254 Cases. The in forma pauperis motion must include an affidavit or affirmation establishing that the petitioner is unable to pay the fees and costs for the proceedings. It also must include a prison certification section, completed and signed by an

authorized officer of the institution in which the prisoner is incarcerated, certifying both the amount presently on deposit in the prisoner’s inmate trust account and the prisoner's average account balance during the last six months.! 28 U.S.C. § 1915(a)(1)-(2); Rule 3(a)(2) of the Rules Governing Section 2254 Cases. Here, Petitioner did not pay the $5.00 filing fee or submit a motion to proceed in forma pauperis that includes a prison certification of Petitioner’s inmate trust fund account. 28 U.S.C. § 1915(a)(1)-(2). CONCLUSION For the reasons set forth above, the Clerk of Court shall administratively terminate the Petition without filing it or assessing a filing fee. Petitioner is granted leave to reopen this case, no later than 30 days from entry of this Order, by submitting either (1) the $5.00 filing fee or (2) a completed and signed prison certification section.2 The Clerk of Court is directed to send an in forma pauperis motion form to Petitioner. Upon Petitioner's submission within 30 days of either (1) the $5.00 filing fee or (2) a completed prison certification, the Clerk of Court shall reopen this case without further order.

1 The Court has ordered that a form motion to proceed in forma pauperis with certification section be mailed to the Petitioner. The form also is available at http:/Wwww.nywd.uscourts.gov/pro-se-forms. 2 Such an administrative termination is not a "dismissal" for purposes of the statute of limitations, and if the case is re-opened under the terms of this order, it is not subject to the statute of limitations time bar if it was originally filed timely. See Houston v. Lack, 487 U.S. 266 (1988) (prisoner mailbox rule); McDowell v. Del. State Police, 88 F.3d 188, 191 (38d Cir. 1996); see also Williams-Guice v. Bd. of Educ., 45 F.3d 161, 1638 (7th Cir. 1995).

SO ORDERED. Dated: Utumppr 5 2024 Rochester, New York /

MEREDITH A. VACCA UNITED STATES DISTRICT JUDGE