Miller v. High Desert State Prison et al

Filing 2

ORDER DISMISSING CASE without prejudice. Court shall enter Judgment. Court shall send petitioner two in forma pauperis application forms and one copy of instructions. Signed by Chief Judge Roger L. Hunt on 3/9/2011. (Copies have been distributed pursuant to the NEF - SLR)

-GWF Miller v. High Desert State Prison et al

Doc. 2

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner. Petitioner's application to proceed in forma pauperis (ECF No. 1) is incomplete. The application does not include a financial certificate signed by an authorized prison or jail officer, nor does it provide the necessary financial information regarding petitioner's prison account. The application will be denied on that basis. The Court has reviewed the petition and finds that it fails to state a cognizable claim for habeas relief. Petitioner has failed to complete the habeas corpus petition form, including the date of his conviction, the dates of decision from his state appeals, and other crucial information. The substance of the petition is incomprehensible and fails to state a cognizable habeas corpus claim. JERRY LEIGH MILLER, ) ) Petitioner, ) ) vs. ) ) BRIAN WILLIAMS, et al., ) ) Respondents. ) ____________________________________/

2:10-cv-02232-RLH-GWF ORDER

Dockets.Justia.com

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Unless an issue of federal constitutional or statutory law is implicated by the facts presented, the claim is not cognizable under federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68 (1991). A state law issue cannot be mutated into one of federal constitutional law merely by invoking the specter of a due process violation. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996), cert. denied, 522 U.S. 881 (1997). Petitioner must demonstrate the existence of federal constitutional law which establishes the right in question. In the instant case, petitioner does not allege violation of a federal constitutional right. The petition does not set forth a viable claim for habeas corpus relief and must be dismissed. See Rule 4, Rules Governing Section 2254 Cases. IT THEREFORE IS ORDERED that petitioner's motion to proceed in forma pauperis (ECF No. 1) is DENIED. IT FURTHER IS ORDERED that this action is DISMISSED without prejudice to the filing of a new petition in a new action. All pending motions are DENIED. The Clerk of the Court shall enter judgment accordingly. IT FURTHER IS ORDERED that the Clerk of the Court shall send petitioner two copies of an in forma pauperis application form for a prisoner, one copy of the instructions for the same, two copies of a blank 28 U.S.C. § 2254 habeas petition form, and one copy of instructions for the same. Petitioner may file a new petition in a new action, but he may not file further documents in this action. Dated this 9th day of March, 2011.

_________________________________ ROGER L. HUNT Chief United States District Judge

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