Cota v. Gittere et al

Filing 4

ORDER - Petitioner Michael Cota's "Motion under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (ECF No. #3 ) is denied. Cota's application to proceed in forma pauperis (ECF No. #1 ) is denied, without prejudice. Cota will have 45 days from the date of this Order to either pay the $5.00 filing fee or file a fully completed IFP application, including the required financial certificate. The Clerk of Court is directed to send to Cota, along with a copy of this order, two IFP applications (attached hereto for distribution to Plaintiff by ESP). Signed by Chief Judge Miranda M. Du on 9/8/2021. (Attachments: #1 Application to Proceed in Forma Pauperis Form and Instructions (1 of 2), #2 Application to Proceed in Forma Pauperis Form and Instructions (2 of 2))(Copies have been distributed pursuant to the NEF - SC)

Case 3:21-cv-00399-MMD-CLB Document 4 Filed 09/08/21 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL COTA,

Case No. 3:21-cv-00399-MMD-CLB

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Petitioner,

ORDER

v.
WILLIAM GITTERE, et al.,
Respondents.

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This action is a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254,

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by Petitioner Michael Cota, an individual incarcerated at Nevada’s Ely State Prison. Cota

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initiated this action on September 2, 2021, by submitting his habeas petition (ECF No. 1-

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1), along with an application to proceed in forma pauperis (ECF No. 1). On September 3,

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2021, Cota filed a “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

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Sentence by a Person in Federal Custody.” (ECF No. 3 (“Motion”).)

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Cota’s application to proceed in forma pauperis is incomplete, in that it does not

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include the required financial certificate, completed, and signed by an authorized prison

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officer. See LR LSR 1-2. The Court will therefore deny the application to proceed in forma

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pauperis, without prejudice to Cota filing a new application.

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The Court will grant Cota time to either pay the filing fee for this action or file a new

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application to proceed in forma pauperis. If Cota wishes to pay the filing fee, Cota must

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have $5.00 sent to the Clerk of Court, with a cover letter indicating the case number of

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this action. If Cota fails to pay the filing fee or file a new in forma pauperis application

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within the time allowed, this action will be dismissed.

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The Court will deny Cota’s Motion under 28 U.S.C. § 2255. Such a motion is

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properly made only by a person in federal custody. Cota is not in federal custody; he is

Case 3:21-cv-00399-MMD-CLB Document 4 Filed 09/08/21 Page 2 of 2

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state custody. Cota’s state conviction and sentence are properly challenged by means of

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his petition for writ of habeas corpus under 28 U.S.C. § 2254.

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It is therefore hereby ordered that Petitioner Michael Cota’s “Motion under 28

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U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody”

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(ECF No. 3) is denied.

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It is further ordered that Cota’s application to proceed in forma pauperis (ECF No.
1) is denied, without prejudice.

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It is further ordered that Cota will have 45 days from the date of this Order to either

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pay the $5.00 filing fee for this action as instructed above or file a fully completed

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application to proceed in forma pauperis, including the required financial certificate.
The Clerk of Court is directed to send to Cota, along with a copy of this order, two
form in forma pauperis applications.
DATED THIS 8th Day of September 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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