Dzik v. State of Nevada

Filing 4

ORDER. IFP/Payment of filing fees due 2/17/2023. Signed by Judge Gloria M. Navarro on 1/18/2023. (Attachments: # 1 IFP Inmate Form/Instructions (Copy attached for distribution to P via HDSP law library), # 2 § 2254 habeas petition (Copy attached for distribution to P via HDSP law library)) (Copies have been distributed pursuant to the NEF - HAM)

Case 2:22-cv-02113-GMN-EJY Document 4 Filed 01/18/23 Page 1 of 2

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9
10
11
12

MITCHELL DZIK,
v.

Petitioner,

ORDER

STATE OF NEVADA, et al.,
Respondents.

13
14

Case No. 2:22-cv-02113-GMN-EJY

Petitioner has submitted a pro se petition for writ of habeas corpus, pursuant to

15

28 U.S.C. § 2254 (ECF No. 1-1). However, petitioner has submitted an incomplete

16

application to proceed in forma pauperis. He has failed to include a signed financial

17

certificate or inmate account statements. Accordingly, this matter has not been properly

18

commenced. 28 U.S.C. § 1915(a)(2) and Local Rule LSR1-2.

19

This action therefore is subject to dismissal without prejudice as improperly

20

commenced. However, the court will give petitioner 30 days to either (1) pay the $5.00

21

filing fee or (2) submit a completed and signed financial certificate and the required

22

inmate account statements. Failure to do so may result in the dismissal of this action

23

without prejudice.

24

The court notes that Dzik’s petition is not on the court’s form as required by the

25

local rules, and it also appears to be unexhausted. 1 A federal court will not grant a state

26

prisoner’s petition for habeas relief until the prisoner has exhausted his available state

27
28

1 Petitioner states on the face of his petition that his appeal of the denial of his motion to correct
illegal sentence is pending in state court. (ECF No. 1-1 at 5.)

1

Case 2:22-cv-02113-GMN-EJY Document 4 Filed 01/18/23 Page 2 of 2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. §
2254(b). A petitioner must give the state courts a fair opportunity to act on each of his
claims before he presents those claims in a federal habeas petition. O’Sullivan v.
Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365
(1995). A claim remains unexhausted until the petitioner has given the highest available
state court the opportunity to consider the claim through direct appeal or state collateral
review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison
v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).
IT IS THEREFORE ordered that within 30 days of the date of this order petitioner
must either pay the $5.00 filing fee or submit a financial certificate and inmate account
statements.
IT IS FURTHER ORDERED that if petitioner fails to comply with this order, this
action may be dismissed without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court SEND to petitioner one copy
of the application to proceed in forma pauperis for incarcerated persons, with
instructions and one copy of the form 28 U.S.C. § 2254 habeas petition.

DATED: 18 January 2023.

20
21

GLORIA M. NAVARRO
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
2