Translate
Text Highlighter

Bookmark

PDF

Share

Report a problem

MELVIN TRAYLOR Petitioner, v. UNITED STATES OF AMERICA Respondent.

FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

JEFF KAPLAN, Magistrate Judge

Petitioner Melvin Traylor, appearing pro se, has filed an application to proceed in forma pauperis in this habeas case brought under 28 U.S.C. § 2241. For the reasons stated herein, the application should be denied.

I.

Petitioner is serving a 275-month sentence for conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. His conviction and sentence were affirmed on direct appeal. United States v. Traylor, No. 97-10067 (5th Cir. Jun. 15, 1999). Petitioner also filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255 and an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Both motions were denied. United States v. Traylor, No. 3-00-CV-1999-R (N.D. Tex. Feb. 15, 2001), COA denied, No. 01-10396 (5th Cir. Jul. 11, 2001) (section 2254 motion); Traylor v. Wendt, No. 3-03-CV-0422-R, 2003 WL 21517358 (N.D. Tex. Apr. 14, 2003) (section 2241 writ). Undeterred, petitioner now seeks federal habeas relief for a second time on the ground that his sentence was enhanced for use of a firearm which was not alleged in the indictment or proven to a jury beyond a reasonable doubt. Process has been withheld pending a determination of the application to proceed in forma pauperis.

Petitioner also recently filed a second section 2255 motion that is currently pending before another judge in this district. United States v. Traylor, No. 3-05-CV-2250-B.

II.

The standards governing in forma pauperis motions are set forth in 28 U.S.C. § 1915(a). The district court may authorize the commencement of a civil action without the prepayment of fees or costs "by a person who submits an affidavit . . . that [he] is unable to pay such costs or give security therefor." 28 U.S.C. § 1915(a)(1). The court must examine the financial condition of the applicant in order to determine whether the payment of fees would cause an undue financial hardship. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir.), cert. denied, 109 S.Ct. 364 (1988). The amount of money available to an inmate in his prison trust account or from other sources should be considered. See id.; Braden v. Estelle, 428 F.Supp. 595, 601 (S.D. Tex. 1977).

Petitioner has submitted an affidavit in support of his application to proceed in forma pauperis. A statement of his inmate trust account is attached. The record shows that petitioner has $120.32 on deposit with prison officials. The filing fee for a habeas petition is $5.00. 28 U.S.C. § 1914(a). The court concludes that petitioner is able to pay this fee without causing undue financial hardship. See also MISC. ORDER 13 at ¶ 9 (N.D. Tex. Feb. 1, 1977) (requiring habeas petitioner to pay filing fee if prison account and other resources exceed $50.00).

RECOMMENDATION

The application to proceed in forma pauperis should be denied. Petitioner should be ordered to pay the statutory filing fee by January 6, 2006. If he fails to do so, this case should be dismissed without further notice.

Use AI to get other relevant cases.

Comments

TRAYLOR v. U.S
(Dec 1, 2005)