Botelho v. Office of the Warden

Filing 3

ORDERED that the initial screening of the Petition (ECF No. #1 -1) is deferred to until such time as Petitioner has fully complied with this order. Within 45 days of the date of this order (6/23/2022), Botelho must file an IFP application as detailed herein, or pay $5 filing fee. Botelho must file an amended petition on the Court's form within 45 days of the date of this order (6/23/2022); annotated 3:22-cv-00191- MMD-CLB, in the designated space. Clerk is directed to send Botelho blank copies of (1) the IFP application for incarcerated individuals, and (2) the form petition for a writ of habeas corpus pursuant to 2254. (Forms attached hereto for distribution to P via NNCC law library.). Signed by Chief Judge Miranda M. Du on 5/9/2022. (Attachments: #1 IFP form and Instructions, #2 2254 form and Instructions)(Copies have been distributed pursuant to the NEF - DRM)

Case 3:22-cv-00191-MMD-CLB Document 3 Filed 05/09/22 Page 1 of 3

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

MICHAEL TODD BOTELHO,

7
8
9
10

Case No. 3:22-cv-00191-MMD-CLB
Petitioner,

ORDER

v.
OFFICE OF THE WARDEN, et al.,
Respondents.

11

Petitioner Michael Todd Botelho proceeding pro se has filed a purported habeas

12

petition that is not on the court-required form. (ECF No. 1-1.) In addition, Botelho has not

13

properly commenced this habeas action by either paying the standard $5.00 filing fee or

14

filing an application for leave to proceed in forma pauperis (“IFP”).

15

Pursuant to 28 U.S.C. § 1914(a) and the Judicial Conference Schedule of Fees, a

16

$5.00 filing fee is required to initiate a habeas action in a federal district court. The Court

17

may authorize an indigent prisoner to begin a habeas action without paying the $5 fee if

18

he or she submits an IFP application on the approved form and includes three specific

19

documents: (a) the prisoner’s financial declaration and acknowledgement showing an

20

inability to prepay fees and costs, (b) a financial certificate signed by the prisoner and an

21

authorized prison official, and (c) a copy of the prisoner’s account statement for the six-

22

month period prior to filing. See 28 U.S.C. § 1915(a); LSR 1-1, LSR 1-2.

23
24

Botelho will have 45 days from the date of this order to either pay the $5 filing fee
or submit a complete IFP application with all required documentation.

25

To the extent Botelho is raising a challenge to his conviction, his petition is subject

26

to substantial defects requiring amendment. Botelho did not file a petition on the

27

appropriate form or in substantial compliance with the form. The form is important as it

28

provides the Court with necessary information to conduct preliminary review of the petition.

Case 3:22-cv-00191-MMD-CLB Document 3 Filed 05/09/22 Page 2 of 3

1

He asserts that he is a sovereign citizen that is being held hostage in violation of 18 USC

2

§ 1203. (ECF No. 1-1 at 2.) Botelho did not submit the Court’s form petition but, instead,

3

hand-wrote a petition on blank paper. His hand-written petition fails to disclose the required

4

information. Accordingly, Botelho must, within 45 days of the date of this order, file an

5

amended petition for habeas corpus relief on the Court’s form.1 In doing so, Botelho is

6

advised to follow the instructions on the form and to refrain from lengthy legal or factual

7

argument. Botelho must clearly title the amended petition as such, and he must place the

8

case number, 3:22-cv-00191-MMD-CLB, in the designated space.

9

It is therefore ordered that the initial screening of Petitioner Michael Todd Botelho’s

10

Petition for Writ of Habeas Corpus (ECF No. 1-1) under the Rules Governing Section 2254

11

Cases is deferred to until such time as he has fully complied with this order.

12

It is further ordered that within 45 days of the date of this order, Botelho must file

13

an IFP application that includes a: (a) financial certificate signed by Petitioner and an

14

authorized prison official, (b) financial declaration and acknowledgement signed by

15

Petitioner, and (c) copy of Petitioner’s inmate account statement for the six-month period

16

prior to filing. Alternatively, Petitioner must pay the $5 filing fee within 45 days. If Petitioner

17

decides to pay the filing fee from his inmate account, he must arrange to have a copy of

18

this order attached to the check for the filing fee.

19

It is further ordered that Botelho must file an amended petition on the Court’s form

20

within 45 days of the date of this order. He must place the case number, 3:22-cv-00191-

21

MMD-CLB, in the designated space.

22

It is further ordered that the Clerk of the Court is directed to send Botelho blank

23

copies of (1) the IFP application for incarcerated individuals, and (2) the form petition for

24

a writ of habeas corpus pursuant to § 2254.

25

///

26
27
28

1Petitioner

at all times remains responsible for calculating the applicable statute of
limitations. By ordering Petitioner to amend his petition, the Court makes no finding or
representation that either the original or amended petition will be considered timely.

2

Case 3:22-cv-00191-MMD-CLB Document 3 Filed 05/09/22 Page 3 of 3

1
2
3

It is further ordered that Petitioner’s failure to timely comply with this Order will result
in the dismissal of the petition without prejudice and without further advance notice.
DATED THIS 9th Day of May 2022.

4
5
6

MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3