Opinion
3:12-cv-00678-LRH-VPC
01-23-2013
MICHAEL STEVE COX, Petitioner, v. COX, et al., Respondents.
ORDER
Petitioner, a Nevada state prisoner, has filed an application to proceed in forma pauperis (ECF #1), and a form petition for a writ of habeas corpus by a person attacking a state detainer (ECF #1-1).
Petitioner appears to attempt to challenge a Nevada state district court order designating him a vexatious litigant in that matter unless he complies with a certain district court order. He appears to complain that 2900 days of good-time credits have been forfeited. Clearly, he is not attacking a state detainer. A petition for a writ of habeas corpus must be on the correct court-approved form and must be accompanied by either the full filing fee or a fully completed application to proceed in forma pauperis. LSR 2-1("[a] civil rights complaint filed by a person who is not represented by counsel shall be on the form provided by this court.").
The court notes that petitioner also states in this petition that he is serving a sentence of life without the possibility of parole.
The court further notes that it may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "[T]he essence of habeas corpus is an attack by a person in custody on the legality of that custody, and the traditional function of the writ is to secure release from illegal custody. Preiser v Rodriguez, 411 U.S. 475, 484 (1973). "[H]abeas corpus is not an appropriate or available federal remedy" when a petitioner is not "challeng[ing] the very fact or duration of confinement itself" or unconstitutional restraints that render the petitioner's otherwise lawful custody, unlawful. Id. at 494, 499.
As petitioner is not challenging a state detainer, this petition is dismissed without prejudice. If petitioner seeks to pursue a writ of habeas corpus, he shall file a new petition, on the correct form, in a new case with a new case number. He shall either include the full filing fee or file an application to proceed in forma pauperis, with all the required financial information.
It does not appear from the papers presented that a dismissal without prejudice will materially affect a later analysis of any timeliness issue with regard to a promptly filed new action.
Petitioner appears to refer to a state case in which, according to its online docket, the Nevada Supreme Court dismissed his appeal on September 14, 2012 (Case No. 61444, remittitur issued October 11, 2012).
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IT IS THEREFORE ORDERED that this petitioner's application to proceed in forma pauperis (ECF #1) is DENIED as moot.
IT IS FURTHER ORDERED that the Clerk shall DETACH and FILE the petition for a writ of habeas corpus by a person attacking a state detainer (ECF #1-1).
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to the filing of a new petition in a new action with a properly completed application form to proceed in forma pauperis.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED, as jurists of reason would not find the court's dismissal of this improperly commenced action without prejudice to be debatable or incorrect.
IT IS FURTHER ORDERED that the Clerk shall send petitioner two copies each of an application form to proceed in forma pauperis for incarcerated persons and a noncapital Section 2254 habeas petition form, one copy of the instructions for each form, and a copy of the papers that he submitted in this action.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE