Cruz v. State of Nevada

Filing 3

ORDER - The IFP application(ECF No. 1 ) is denied. This action is dismissed without prejudice to the filing of a new petition in a new action with a properly completed IFP application with all new and complete financial attachments. All pending mo tions are denied without prejudice. Clerk shall send petitioner 2 copies each of an IFP application and a noncapital Section 2254 habeas petition form, 1 copy of the instructions for each form, and a copy of the papers that he submitted in this acti on. ( Mailed to P 9/19/2016.) Petitioner may file a new petition and IFP application in a new action, but he may not file further documents in this action. Clerk shall enter judgment accordingly. It is further ordered that a certificate of appealability is denied. Signed by Judge Miranda M. Du on 9/19/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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HERON CRUZ,

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Case No. 3:16-cv-00536-MMD-WGC
Petitioner,

ORDER

v.
STATE OF NEVADA, et al.,
Respondents.
This action was opened by the Clerk of Court as a pro se petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254 by a Nevada state prisoner.

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Petitioner initiated this action by submitting an in forma pauperis application and

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a motion for the appointment of counsel. (ECF Nos.1 & 1-1). This action has not been

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properly commenced because petitioner failed to submit a habeas petition. Unless an

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issue of federal constitutional or statutory law is implicated by the facts presented, there

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is no cognizable claim under federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68

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(1991). As there is no petition submitted in this action, it will be dismissed, without

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prejudice to filing a petition as a new action.

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Additionally, petitioner’s in forma pauperis application is incomplete. Under 28

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U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, petitioner must attach both an inmate

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account statement for the past six months and a properly executed financial certificate.

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Here, petitioner failed to include a copy of his inmate account statement and failed to

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submit a financial certificate signed by an authorized prison or jail officer. The Court is

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unable to see, inter alia, the regularity and amount of any incoming funds as well as the

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extent to which petitioner is making discretionary expenditures that instead could be

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applied to payment of the filing fee.

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Due to the defects presented, the present action will be dismissed without

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prejudice to the filing of a new petition in a new action with a pauper application with all

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required attachments. It does not appear from the papers presented that a dismissal

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without prejudice would result in a promptly-filed new petition being untimely. In this

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regard, petitioner at all times remains responsible for calculating the running of the

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federal limitation period as applied to his case, properly commencing a timely-filed

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federal habeas action, and properly exhausting his claims in the state courts.

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It is therefore ordered that the application to proceed in forma pauperis (ECF No.

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1) is denied and that this action is dismissed without prejudice to the filing of a new

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petition in a new action with a properly completed pauper application with all new and

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complete financial attachments.

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It is further ordered that all pending motions are denied without prejudice.

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It is further ordered that the Clerk of Court send petitioner two (2) copies each of

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an application form to proceed in forma pauperis for incarcerated persons and a

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noncapital Section 2254 habeas petition form, one (1) copy of the instructions for each

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form, and a copy of the papers that he submitted in this action.

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It is further ordered that petitioner may file a new petition and in forma pauperis
application in a new action, but he may not file further documents in this action.

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It is further ordered that the Clerk of the Court enter judgment accordingly.

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It is further ordered that a certificate of appealability is denied. Reasonable jurists

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would not find the dismissal of the improperly-commenced action without prejudice to be

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debatable or wrong.

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DATED THIS 19th day of September 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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