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)

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Case 3:21-cv-00399-MMD-CLB Document 4 Filed 09/08/21 Page 1 of 2 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 MICHAEL COTA, Case No. 3:21-cv-00399-MMD-CLB 7 8 9 10 Petitioner, ORDER v. WILLIAM GITTERE, et al., Respondents. 11 12 This action is a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, 13 by Petitioner Michael Cota, an individual incarcerated at Nevada’s Ely State Prison. Cota 14 initiated this action on September 2, 2021, by submitting his habeas petition (ECF No. 1- 15 1), along with an application to proceed in forma pauperis (ECF No. 1). On September 3, 16 2021, Cota filed a “Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct 17 Sentence by a Person in Federal Custody.” (ECF No. 3 (“Motion”).) 18 Cota’s application to proceed in forma pauperis is incomplete, in that it does not 19 include the required financial certificate, completed, and signed by an authorized prison 20 officer. See LR LSR 1-2. The Court will therefore deny the application to proceed in forma 21 pauperis, without prejudice to Cota filing a new application. 22 The Court will grant Cota time to either pay the filing fee for this action or file a new 23 application to proceed in forma pauperis. If Cota wishes to pay the filing fee, Cota must 24 have $5.00 sent to the Clerk of Court, with a cover letter indicating the case number of 25 this action. If Cota fails to pay the filing fee or file a new in forma pauperis application 26 within the time allowed, this action will be dismissed. 27 The Court will deny Cota’s Motion under 28 U.S.C. § 2255. Such a motion is 28 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 1 state custody. Cota’s state conviction and sentence are properly challenged by means of 2 his petition for writ of habeas corpus under 28 U.S.C. § 2254. 3 It is therefore hereby ordered that Petitioner Michael Cota’s “Motion under 28 4 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” 5 (ECF No. 3) is denied. 6 7 It is further ordered that Cota’s application to proceed in forma pauperis (ECF No. 1) is denied, without prejudice. 8 It is further ordered that Cota will have 45 days from the date of this Order to either 9 pay the $5.00 filing fee for this action as instructed above or file a fully completed 10 11 12 13 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. 14 15 16 17 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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