Burriola v. Palmer et al

Filing 5

ORDERED that the Clerk of Court shall file the motion (# 1 -1) to correct illegal sentence, that said motion is DENIED, and that this action is DISMISSED without prejudice. FURTHER ORDERED that a certificate of appealability is DENIED. The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Chief Judge Robert C. Jones on 10/27/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANTHONY BURRIOLA,
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Petitioner,

3:11-cv-00708-RCJ-WGC

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vs.

ORDER

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PALMER, et al.,
Respondents.

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This habeas action comes before the Court for initial review under Rule 4 of the Rules
Governing Section 2254 Cases, following upon payment of the filing fee (#4).

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Under Local Rule LSR 3-1, petitioner may challenge a state court conviction and/or

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sentence only upon the Court’s required Section 2254 petition form. In the present case,

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petitioner seeks to file a handwritten motion to correct an illegal sentence. There is no such

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vehicle for challenging a state court conviction or sentence in federal court. A petitioner

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instead must file a Section 2254 habeas petition on the Court’s required petition form.

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The matter therefore will be dismissed without prejudice. A dismissal of this matter

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without prejudice will not materially impact the analysis of whether or not a subsequent

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petition is untimely, successive and/or otherwise deficient. Petitioner is seeking to challenge

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his February 23, 1999, judgment of conviction in No. C143171 in the Eighth Judicial District

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Court, State of Nevada. Petitioner previously challenged the same conviction in No. 3:06-cv-

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00059-PMP-RAM, and the Court dismissed that petition as untimely. Petitioner sought to

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challenge the same conviction again in No. 3:10-cv-00357-LRH-VPC, and the Court

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dismissed that petition as successive.1

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IT THEREFORE IS ORDERED that the Clerk of Court shall file the motion (#1-1) to

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correct illegal sentence, that said motion is DENIED, and that this action is DISMISSED

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without prejudice.

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IT FURTHER IS ORDERED that a certificate of appealability is DENIED. Jurists of

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reason would not find the Court’s dismissal of the action without prejudice to be debatable or

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incorrect.

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The Clerk of Court shall enter final judgment accordingly, dismissing this action without
prejudice.
DATED: October 27, 2011.

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____________________________________
ROBERT C. JONES
Chief United States District Judge

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Nothing in this order holds or im plies that the papers and claim s are not free of other deficiencies.
For exam ple, petitioner alleges that his conviction for second degree m urder should be set aside due to the
alleged use of a Kazalyn charge. However, a Kazalyn charge concerns the distinction between first degree
m urder and second degree m urder. Petitioner was not convicted of first degree m urder.

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