Fleming v. The Attorney General of the State of New York

Background

Robert Fleming, proceeding without a lawyer, originally filed a submission in a closed habeas case that he described as a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). In a prior related proceeding, the court construed the submission as a petition under 28 U.S.C. § 2254 seeking release because of the risk of serious harm from COVID-19 and directed that it be opened as a new civil action. Fleming was also given additional time to notify the court if he did not want to pursue that type of relief.

Order

A person filing a habeas petition in the district court must either pay the $5 filing fee or submit a signed application to proceed without prepayment of fees. Fleming filed the petition without either the fee or an application. The court therefore ordered him, within 30 days of the order, to pay the fee or complete and submit the attached application, labeled with this case’s docket number. If the application is granted, Fleming may proceed without prepaying the filing fee.

Effect of the Order

The court did not require the Attorney General to answer at that time. It directed the Clerk to mail the order to Fleming and note service on the docket. The court stated that the case would be processed under the Clerk’s procedures if Fleming complied, but that the action would be dismissed if he did not comply within the allowed time. The court also certified that an appeal would not be taken in good faith and denied permission to appeal without prepaying fees. Judge Laura Swain issued the order.