IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHEASTERN DIVISION
March 16, 2009
MITCHELL DAVID HOLBACH, PETITIONER,
STATE OF NORTH DAKOTA, DON REDMAN, RESPONDENTS.
The opinion of the court was delivered by: Ralph R. Erickson, District Judge United States District Court
ORDER ADOPTING REPORT AND RECOMMENDATION NDDOCR,
On February 25, 2009, Mitchell David Holbach filed an application to proceed in forma pauperis (IFP); a motion for appointment of counsel; and a petition under 28 U.S.C. § 2254 for a writ of habeas corpus. The habeas petition does not get filed as a case unless the Court grants the IFP application or Holbach pays the filing fee.
On March 5, 2009, the Court received a Report and Recommendation from the Honorable Karen K. Klein, United States Magistrate Judge, pursuant to 28 U.S.C. § 636, recommending Holbach's IFP application be denied and that Holbach should pay the $5.00 filing fee (Doc. #4). On March 12, 2009, Holbach submitted objections to the Report and Recommendation, basically asserting he is indigent and his only source of income is from his father. The next day, before the Court ruled on Holbach's objections, Holbach paid the filing fee. The Court finds that Holbach has abandoned his objections to the Report and Recommendation and has the ability to pay the filing fee.
The Court hereby adopts the Magistrate Judge's decision with regard to Holbach's IFP application. Since the filing fee has been paid, the case is referred back to the Magistrate Judge for consideration of Holbach's motion for appointment of counsel and the merits of his habeas petition.
IT IS SO ORDERED.
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