                                                                             FILED
                             NOT FOR PUBLICATION                              JUL 12 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MICHAEL JAY McCOLLUM,                             No. 11-17281

               Plaintiff - Appellant,             D.C. No. 3:11-cv-00494-RCJ-VPC

  v.
                                                  MEMORANDUM *
STATE OF NEVADA,

               Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Robert Clive Jones, Chief Judge, Presiding

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Michael Jay McCollum, a Nevada state prisoner, appeals pro se from the

district court’s judgment dismissing, for failure to pay a filing fee or submit an

application to proceed in forma pauperis, his petition for writ of habeas corpus




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291. We review

for an abuse of discretion. James v. Madison St. Jail, 122 F.3d 27, 28 (9th Cir.

1997) (per curiam). We vacate and remand.

      A review of the record indicates that the district court incorrectly processed

McCollum’s habeas petition as a civil rights complaint. We remand for the district

court to process his filing in the first instance as a habeas petition, and to notify

him that the filing fee in a habeas case is $5. We express no opinion on the merits

or timeliness of the habeas petition.

      The district court is instructed on remand to refund the $455 appellate

docketing fee to McCollum.

      McCollum’s “Motion to Amend,” filed on October 6, 2011, “Motion of

Discovery,” filed on March 19, 2012, and “Motion for Expedition,” filed on July 2,

2012, are denied as moot.

      VACATED and REMANDED.




                                            2                                     11-17281
