Manzur v. The State of Nevada
ORDER that this action is dismissed without prejudice to the filingof a petition in a new action with either the $5.00 filing fee or a properly completed application form to proceed in forma pauperis; a certificate of appealability is denied ; Clerk directed to send petitioner 2 copies of application form to proceed in forma pauperis for incarcerated persons, a noncapital Section 2254 habeas petition form w/instructions and a copy of the papers he submitted in this action; Clerk directed to enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 10/17/2016. (Copies have been distributed pursuant to the NEF - KW)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
JUAN ESBER MANZUR,
Case No. 3:16-cv-00571-MMD-VPC
STATE OF NEVADA,
Petitioner, a Nevada prisoner, has filed a document styled as a “Motion for
Modification of Sentence,” which the Court construes as petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner has failed to submit an
application to proceed in forma pauperis or pay the filing fee. Accordingly, this matter
has not been properly commenced. 28 U.S.C. § 1915(a)(2) and Local Rules LSR1-1, 1-
Thus, the present action will be dismissed without prejudice to the filing of a
habeas petition pursuant to 28 U.S.C. § 2254 on the form required by this Court in a
new action with either the $5.00 filing fee or a completed application to proceed in forma
pauperis on the proper form with both an inmate account statement for the past six (6)
months and a properly executed financial certificate.
Further, the Court notes that petitioner has not named his custodian as a
respondent. Under Rule 2(a) of the Rules Governing § 2254 cases, petitioner must
name as a respondent the officer who has current custody of petitioner ― usually the
warden of the prison. Failure to name the custodian as respondent deprives the Court of
personal jurisdiction. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).
In addition, the Court notes that petitioner appears to have a previous case under
28 U.S.C. § 2254 with respect to the conviction challenged in this newly-submitted
petition: Manzur v. Williams, 2:07-cv-00384-JCM-RJJ. In that proceeding, the court
dismissed the petition with prejudice based on a finding it was untimely-filed. (ECF No.
32, 2:07-cv-00384-JCM-RJJ.) If that is the case, petitioner is advised that 28 U.S.C. §
2244(b) requires him to obtain leave from the appropriate court of appeals before filing a
second or successive petition in the district court. See McNabb v. Yates, 576 F.3d 1028,
1030 (9th Cir. 2009) (holding that the dismissal of a federal petition on the ground of
untimeliness is a determination “on the merits” for purposes of § 2244(b)).
It is therefore ordered that this action is dismissed without prejudice to the filing
of a petition in a new action with either the $5.00 filing fee or a properly completed
application form to proceed in forma pauperis.
It is further ordered that a certificate of appealability is denied, as jurists of reason
would not find the Court’s dismissal of this improperly commenced action without
prejudice to be debatable or incorrect.
It is further ordered that the Clerk send petitioner two (2) copies each of an
application form to proceed in forma pauperis for incarcerated persons and a noncapital
Section 2254 habeas petition form, one (1) copy of the instructions for each form, and a
copy of the papers that he submitted in this action.
It is further ordered that the Clerk enter judgment accordingly and close this
DATED THIS 17 day of October 2016.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?