Manzur v. The State of Nevada

Filing 2

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JUAN ESBER MANZUR,

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Petitioner,

ORDER

v.

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Case No. 3:16-cv-00571-MMD-VPC

STATE OF NEVADA,
Respondents.

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Petitioner, a Nevada prisoner, has filed a document styled as a “Motion for

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Modification of Sentence,” which the Court construes as petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner has failed to submit an

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application to proceed in forma pauperis or pay the filing fee. Accordingly, this matter

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has not been properly commenced. 28 U.S.C. § 1915(a)(2) and Local Rules LSR1-1, 1-

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2.

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Thus, the present action will be dismissed without prejudice to the filing of a

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habeas petition pursuant to 28 U.S.C. § 2254 on the form required by this Court in a

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new action with either the $5.00 filing fee or a completed application to proceed in forma

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pauperis on the proper form with both an inmate account statement for the past six (6)

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months and a properly executed financial certificate.

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Further, the Court notes that petitioner has not named his custodian as a

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respondent. Under Rule 2(a) of the Rules Governing § 2254 cases, petitioner must

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name as a respondent the officer who has current custody of petitioner ― usually the

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warden of the prison. Failure to name the custodian as respondent deprives the Court of

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personal jurisdiction. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

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In addition, the Court notes that petitioner appears to have a previous case under

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28 U.S.C. § 2254 with respect to the conviction challenged in this newly-submitted

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petition: Manzur v. Williams, 2:07-cv-00384-JCM-RJJ. In that proceeding, the court

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dismissed the petition with prejudice based on a finding it was untimely-filed. (ECF No.

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32, 2:07-cv-00384-JCM-RJJ.) If that is the case, petitioner is advised that 28 U.S.C. §

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2244(b) requires him to obtain leave from the appropriate court of appeals before filing a

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second or successive petition in the district court. See McNabb v. Yates, 576 F.3d 1028,

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1030 (9th Cir. 2009) (holding that the dismissal of a federal petition on the ground of

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untimeliness is a determination “on the merits” for purposes of § 2244(b)).

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It is therefore ordered that this action is dismissed without prejudice to the filing

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of a petition in a new action with either the $5.00 filing fee or a properly completed

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application form to proceed in forma 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

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prejudice to be debatable or incorrect.

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

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

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

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copy of the papers that he submitted in this action.
It is further ordered that the Clerk enter judgment accordingly and close this

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case.
DATED THIS 17 day of October 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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