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MITCHELL v. STATE

United States District Court, S.D. California


December 2, 2005.

MIKE E. MITCHELL, Petitioner,
v.
STATE OF CALIFORNIA, et al., Respondents.

The opinion of the court was delivered by: IRMA GONZALEZ, District Judge

ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

On August 23, 2005, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254. On August 31, 2005, this Court dismissed the petition because Petitioner had failed to either pay the $5.00 filing fee or move to proceed in forma pauperis, failed to name a proper respondent and failed to state a cognizable federal claim. (See Order dated August 31, 2005 [doc. no. 3].) Petitioner was given until October 24, 2005 to either pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee and to submit a First Amended Petition which named a proper respondent and stated ca cognizable federal claim.

On November 8, 2005, Petitioner filed a First Amended petition which named a proper respondent and which stated a cognizable federal claim. He has therefore partially complied with the Court's August 31, 2005 Order. However, Petitioner has neither paid the $5.00 filing fee or filed a motion to proceed in form a pauperis despite the fact that Petitioner indicates in the First Amended Petition that a $5.00 check is enclosed. The Court has not received such a check.

  CONCLUSION

  Accordingly, the case is DISMISSED without prejudice and with leave to amend because Petitioner has failed to fully comply with the August 31, 2005 Order. If Petitioner wishes to proceed with this case, he must, no later than January 4, 2006, either pay the $5.00 filing fee or file a motion to proceed in forma pauperis.*fn1

  IT IS SO ORDERED.

20051202

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