Diaz v. Superintendent
- Colleen McMahon
- 1:20-cv-09174
- U.S. District Court · Southern District of New York
- 2
In Diaz v. Superintendent, Judge McMahon dismissed Gilberto Diaz’s habeas petition without prejudice because he neither paid the fee nor submitted an IFP application.
Gilberto Diaz’s habeas petition was dismissed without prejudice. The order also affected his ability to appeal without paying the filing fee.
What happened
Diaz v. Superintendent concerned Gilberto Diaz’s petition for a writ of habeas corpus. The court had ordered him to submit an application to proceed without paying the filing fee or pay the required $5 fee within 30 days.
Diaz did neither. The court therefore dismissed the petition without prejudice, meaning the dismissal did not bar refiling.
Judge McMahon also ruled that no certificate of appealability would issue and denied permission to appeal without paying the fee because an appeal would not be taken in good faith.
The detailed version
- Diaz v. Superintendent · No. 1:20-cv-09174
- Colleen McMahon
- Feb. 4, 2021
Background
Gilberto Diaz filed a petition for a writ of habeas corpus. On December 7, 2020, the court directed him, within 30 days, either to submit a completed application to proceed without paying the filing fee or to pay the $5 filing fee required for a habeas petition. The court warned that failing to comply would result in dismissal.
Ruling
Diaz did not submit the application or pay the fee. The court dismissed the petition without prejudice under 28 U.S.C. §§ 1914 and 1915. The opinion did not address the substance of Diaz’s habeas claims.
The court also stated that the petition made no substantial showing that a constitutional right had been denied, so it would not issue a certificate of appealability. It further certified that any appeal would not be taken in good faith and denied permission to appeal without paying the filing fee. The clerk was directed to mail the order to Diaz and record service on the docket.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.