Cox v. Cox et al

Filing 3

ORDER Motion/Application for Leave to Proceed in forma pauperis 1 is DENIED as moot. Clerk shall detach and file petition 1 -1. Action is DISMISSED without prejudice to filing new action. Certificate of appealability is DENIED. Cler k shall send petitioner two copies each of IFP application and petition form, instructions for each, and copy of papers submitted in this action (sent 1/24/13). Clerk shall enter judgment accordingly and close case. Case terminated. Signed by Judge Larry R. Hicks on 1/23/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MICHAEL STEVE COX,

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Petitioner,

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vs.

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COX, et al.,

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Respondents.

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3:12-cv-00678-LRH-VPC
ORDER

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Petitioner, a Nevada state prisoner, has filed an application to proceed in forma pauperis (ECF
#1), and a form petition for a writ of habeas corpus by a person attacking a state detainer (ECF #1-1).

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Petitioner appears to attempt to challenge a Nevada state district court order designating him a

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vexatious litigant in that matter unless he complies with a certain district court order. He appears to

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complain that 2900 days of good-time credits have been forfeited.1 Clearly, he is not attacking a state

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detainer. A petition for a writ of habeas corpus must be on the correct court-approved form and must

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be accompanied by either the full filing fee or a fully completed application to proceed in forma

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pauperis. LSR 2-1(“[a] civil rights complaint filed by a person who is not represented by counsel shall

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be on the form provided by this court.”).

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The court further notes that it may entertain a petition for a writ of habeas corpus “in behalf of

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a person in custody pursuant to the judgment of a State court only on the ground that he is in custody

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The court notes that petitioner also states in this petition that he is serving a sentence of life
without the possibility of parole.

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in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). “[T]he

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essence of habeas corpus is an attack by a person in custody on the legality of that custody, and the

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traditional function of the writ is to secure release from illegal custody. Preiser v Rodriguez, 411 U.S.

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475, 484 (1973). “[H]abeas corpus is not an appropriate or available federal remedy” when a petitioner

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is not “challeng[ing] the very fact or duration of confinement itself” or unconstitutional restraints that

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render the petitioner’s otherwise lawful custody, unlawful. Id. at 494, 499.

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As petitioner is not challenging a state detainer, this petition is dismissed without prejudice. If

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petitioner seeks to pursue a writ of habeas corpus, he shall file a new petition, on the correct form, in a

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new case with a new case number. He shall either include the full filing fee or file an application to

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proceed in forma pauperis, with all the required financial information.
It does not appear from the papers presented that a dismissal without prejudice will materially
affect a later analysis of any timeliness issue with regard to a promptly filed new action.2
IT IS THEREFORE ORDERED that this petitioner’s application to proceed in forma pauperis
(ECF #1) is DENIED as moot.
IT IS FURTHER ORDERED that the Clerk shall DETACH and FILE the petition for a writ
of habeas corpus by a person attacking a state detainer (ECF #1-1).

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IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to the filing

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of a new petition in a new action with a properly completed application form to proceed in forma

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pauperis.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED, as jurists of reason

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would not find the court’s dismissal of this improperly commenced action without prejudice to be

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debatable or incorrect.

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IT IS FURTHER ORDERED that the Clerk shall send petitioner two copies each of an

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application form to proceed in forma pauperis for incarcerated persons and a noncapital Section 2254

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habeas petition form, one copy of the instructions for each form, and a copy of the papers that he

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Petitioner appears to refer to a state case in which, according to its online docket, the Nevada
Supreme Court dismissed his appeal on September 14, 2012 (Case No. 61444, remittitur issued October
11, 2012).
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submitted in this action.

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IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and
close this case.

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DATED this 23rd day of January, 2013.

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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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