1

Petitioner’s habeas application is deemed filed as of the date he placed his petition in the prison mail system. See Spotville

v. Cain, 149 F.3d 374, 378 (5th Cir. 1998).

 IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

BOBBY LEONARD, §

§

Petitioner, §

§

v. § 2:06-CV-0017

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

 Respondent. §

REPORT AND RECOMMENDATION TO DENY

APPLICATION TO PROCEED IN FORMA PAUPERIS

and TO DISMISS FOR FAILURE TO PAY FILING FEE

On January 23, 2006, petitioner filed with this Court a federal Petition for a Writ of 

Habeas Corpus.1 Petitioner did not, however, submit with his petition any payment to satisfy the

requisite $5.00 filing fee, nor did he submit an application to proceed in forma pauperis or a

history of his inmate trust account from the jail in which he is confined. 

Permission to proceed in forma pauperis was granted temporarily to petitioner, pending

submission of a certified history of his inmate trust account indicating he is unable to pay the

filing fee or, alternatively, receipt of the $5.00 filing fee. On February 22, petitioner submitted

to the Court a certified history of his inmate trust account which this Court construes as an

application to proceed in forma pauperis. 

 

 Case 2:06-cv-00017-J Document 12 Filed 02/27/06 Page 1 of 3 PageID 66
M:\DATA\CEA\FILEDORDERS\LEONARD.wpd Page 2 of 3

Petitioner’s data sheet reflects receipt of deposits totaling $100.00 during the six-month

period prior to the filing of his petition. The data sheet also reflects petitioner has maintained an

average balance of $11.28 for the six months prior to his filing, with an average deposit per

month of $16.67. Although petitioner’s current balance is reflected as $2.63, his January 2006

balance is shown to be $36.48 and his December 2005 balance is the same, $36.48.

Petitioner does not qualify for a grant of pauper's status. Petitioner possesses, has

possessed, or has had access to, the funds needed to pay the $5.00 filing fee in the instant cause

and should have included such payment with the submission of his application or subsequent to

such submission.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United

States District Judge that petitioner’s request to proceed in forma pauperis be DENIED. It is the

further RECOMMENDATION of the Magistrate Judge that the habeas application filed by

petitioner BOBBY LEONARD be DISMISSED for failure to pay the $5.00 filing fee.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 27th day of February 2006.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

 

 Case 2:06-cv-00017-J Document 12 Filed 02/27/06 Page 2 of 3 PageID 67
M:\DATA\CEA\FILEDORDERS\LEONARD.wpd Page 3 of 3

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the written objections with the United

States District Clerk and serve a copy of such objections on 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, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

If petitioner pays the $5.00 filing fee within the objection period, or submits proper

documentation evidencing the authorization of the disbursement of the requisite funds, the

recommendation of dismissal will be withdrawn. Petitioner is advised, however, that the

payment of the filing fee will not guarantee that this Court will reach the merits of

petitioner’s application.

 

 Case 2:06-cv-00017-J Document 12 Filed 02/27/06 Page 3 of 3 PageID 68