ZOLLER v. THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
Filing
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ORDER re 1 Motion for Leave to Proceed in forma pauperis filed by DONALD ZOLLER, JR. The IFP Motion is DENIED; however, in an abundance of caution, the Court STAYS until August 30, 2013, that portion of this Order which denies Petitioners IFP Mo tion. The Stay will automatically be dissolved at the end of the thirty days and if no filing fee has been received by the end of the thirty days, the Court will order the case closed for failure to prosecute. Signed by Magistrate Judge Cynthia Reed Eddy on 07/31/2013. (bsc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DONALD ZOLLER, JR.,
Petitioner,
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v.
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,
Respondent.
Civil Action No. 2: 13-cv-00873
United States Magistrate Judge
Cynthia Reed Eddy
ORDER
Donald Zoller, Jr., (“Petitioner”) has filed a Motion for Leave to Proceed In Forma
Pauperis (“the IFP Motion”) in order to prosecute a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (ECF No. 1). Whether to grant or deny the IFP Motion is
committed to the sound discretion of the District Court. See Cotto v. Tennis, 369 F.
App’x 321, 322 (3d Cir. 2010) (“We review the denial of leave to proceed IFP for abuse
of discretion.”). Furthermore, it is Petitioner’s burden to prove entitlement to IPF status.
White v. Gregory, 87 F.3d 429, 320 (10th Cir. 1996); In re Lassina, 261 B.R. 614, 618
(E.D. Pa. 2001) (“The applicant bears the burden of proving her entitlement to IFP relief
by a preponderance of the evidence.”) In the sound exercise of its discretion and after
reviewing the IFP Motion, the Court finds that Petitioner has not met his burden to show
entitlement to IFP status. The IFP motion and attachments show that Petitioner has
sufficient funds available to him in order to pay the $5.00 filing fee and Petitioner has not
shown that paying the $5.00 filing fee would “force [him] to abandon what may be a
meritorious claim in order to spare himself complete destitution.” Cotto, 369 F. App’x at
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322 (quoting Jones v. Zimmerman, 752 F.2d 76, 79 (3d Cir. 1985)). Accordingly, the IFP
Motion is DENIED.
Hence, Petitioner is ORDERED to pay the $5.00 filing fee on or before August
30, 2013.
However, in an abundance of caution, this Court STAYS until August 30, 2013,
that portion of this Order which denies Petitioner’s IFP Motion. The Court does so out of
a concern for the Statute of Limitations contained in the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d) and its potential impact on the
timeliness of the Petition. The filing and the pendency of an IFP Motion tolls the
running of the statute of limitations. See, e.g., Urrutia v. Harrisburg County Police
Dept., 91 F.3d 451, 459 (3d Cir. 1996) (“This is a matter of first impression in this
Circuit, but other courts have suspended the running of the statute of limitations during
the pendency of an in forma pauperis motion.”). To obviate any concerns about the
running of the AEDPA statute of limitations, the Court’s entering of this Stay of the
Order denying the IFP Motion will provide the Petitioner with thirty days in which to pay
the $5.00 filing fee. The Court deems that the effect of this Stay is to permit the IFP
Motion to continue pending during these thirty days and hence, the AEDPA statute of
limitations is tolled during these thirty days. The Stay will automatically be dissolved at
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the end of the thirty days and if no filing fee has been received by the end of the thirty
days, the Court will order the case closed for failure to prosecute.
BY THE COURT:
/s Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge
cc:
Lisa B. Freeland
Federal Public Defender's Office
Email: lisa_freeland@fd.org
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