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Resto v. Wood

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 30, 2009

ALBERTO RESTO, PETITIONER,
v.
R. WOOD, SUPERINTENDENT, RESPONDENT.

The opinion of the court was delivered by: Gary L. Sharpe United States District Judge

DECISION and ORDER

On November 10, 2008, petitioner pro se Alberto Resto filed a petition for a writ of habeas corpus in this District. See Dkt. No. 1 ("Petition"). He thereafter filed an application in which he sought permission to proceed with this action in forma pauperis. Dkt. No. 3 ("IFP Application").

In its Decision and Order signed November 24, 2008, this Court noted that because the handwriting on Resto's petition is plainly illegible, the Court could not ascertain the grounds for relief asserted in the habeas petition or the facts in support of those grounds. See Decision and Order (11/24/08) (Dkt. No. 4) ("November Order") at p. 2 (citing Petition).

Since Resto's pleading failed to comply with the pleading requirements of Fed.R.Civ.P. 8(a), he was directed to file a legible, amended petition with the Court within thirty (30) days of the date of the filing of the November Order. November Order at p. 4. Petitioner was cautioned that if he failed to timely file that pleading, his action would be dismissed.

In that same order, the Court noted that the in forma pauperis application which Resto had filed was incomplete; he failed to answer three of the six questions contained on that form. See November Order at p. 3 (citing IFP Application at ¶¶ 3-6). Such application was therefore denied without prejudice to Resto submitting either a renewed, fully completed in forma pauperis application, or, alternatively, the $5.00 filing fee required for his action. November Order at p. 3. Resto was advised that if he failed to either pay the $5.00 filing fee or submit a signed, fully completed in forma pauperis application, within thirty (30) days from the date of the filing of the November Order, his petition would be dismissed. November Order at p. 4.

To date, Resto has failed to either submit an amended petition in this matter or request additional time from the Court to submit such pleading. On December 4, 2008, petitioner submitted a renewed in forma pauperis application. See Dkt. No. 5 ("Renewed IFP Application"). Unfortunately, as with his original in forma pauperis application, Resto failed to answer three of the six questions contained on his renewed in forma pauperis application. Compare IFP Application at ¶¶ 3-6 with Renewed IFP Application at ¶¶ 3-6.

Because: i) there is no legible pleading currently filed with the Court upon which any application for federal habeas relief could be granted; and ii) petitioner failed to timely file an amended petition in compliance with the terms of the November Order, this Court dismisses this action. Moreover, since the renewed in forma pauperis application completed by Resto is incomplete, that request is also denied.

WHEREFORE, based upon the foregoing, it is hereby

ORDERED, that this action is dismissed for the reasons stated above, and it is further ORDERED, that Resto's renewed in forma pauperis application (Dkt. No. 5) is denied as incomplete, and it is further

ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on Resto.

IT IS SO ORDERED.

20090130

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