Opinion
3:23-cv-00386-MMD-CLB
08-28-2023
DUSTIN BARRAL, Petitioner, v. STATE OF NEVADA, Respondent.
ORDER
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
I. SUMMARY
Petitioner Dustin Barral, a pro se Nevada prisoner, commenced this action by filing a Motion to Vacate Judgment and/or Correct Illegal Sentence (ECF No. 1-1) as well as an Application for Leave to Proceed In Forma Pauperis (ECF No. 3 (“IFP application”)).
II. IFP APPLICATION
A $5.00 filing fee is required to initiate a habeas action in a federal district court. 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees. The Court may authorize a person to begin an action without prepaying fees and costs if the person demonstrates indigency. 28 U.S.C. § 1915; LSR 1-1, 1-2. The IFP application must be submitted on the form provided by the Court and include specific financial information and a declaration confirming under the penalty of perjury that the financial information is true. Id.
Although Petitioner submitted the required form, the supporting documents show he is able to pay the $5 filing fee. Thus, he does not qualify for a fee waiver. The Court therefore denies the IFP application and gives Petitioner until 45 days from the date of entry of this order to pay the $5 filing fee.
III. DISCUSSION
Petitioner challenges a conviction and sentence imposed by the Eighth Judicial District Court for Clark County arguing that the state court lacked subject matter jurisdiction. Because Petitioner is challenging his state court conviction and sentence, he may file his motion to vacate judgment and/or correct illegal sentence in state court. If Petitioner intends to pursue a federal habeas case under 28 U.S.C. § 2254 in this action, he must file a petition for writ of habeas corpus on the Court's required § 2254 petition form. Accordingly, if Petitioner intends to file a federal habeas case, Petitioner must file a petition on the Court's form within 45 days of the date of this order.
IV. CONCLUSION
It is therefore ordered that Petitioner's Application for Leave to Proceed In Forma Pauperis (ECF No. 3) is denied.
It is further ordered that Petitioner must pay the $5.00 filing fee within 45 days of the date of this order.
The Clerk of Court is directed to send Petitioner a blank form petition for writ of habeas corpus under 28 U.S.C. § 2254 with instructions.
It is further ordered that if Petitioner intends to file a federal habeas case, he must file a petition on the Court's form within 45 days of the date of this order.
It is further ordered that if Petitioner fails to timely and fully comply with this order, the Court will dismiss this action without prejudice and without further advance notice.