United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This habeas action comes before the Court for initial review.
The papers presented are subject to multiple substantial defects.
First, petitioner did not properly commence the federal action by either paying the filing fee or submitting a properly completed pauper application. Under Local Rule LSR 1-1, a petitioner must use the Court's required pauper application form to seek pauper status. Under Local Rule LSR 1-2, a petitioner must attach both a financial certificate authorized by an appropriate correctional official and a statement of his inmate trust account for the prior six (6) months. Petitioner did not use the required pauper form, and he did not include the required financial certificate.
Second, petitioner did not use the required form for a petition challenging a state court conviction. Under Local Rule LSR 3-1, a petitioner seeking to challenge a state court conviction must use the Court's required form for a petition under 28 U.S.C. § 2254. Petitioner instead used a form for a motion under 28 U.S.C. § 2255 that would be used by a person seeking to challenge a federal conviction and sentence.
Third, petitioner may not proceed against the only respondent named, the State of Nevada. Petitioner may not bring a civil action in federal court directly against the State of Nevada because of the state sovereign immunity recognized by the Eleventh Amendment, regardless of the relief sought. E.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101-02 (1984).
Fourth, petitioner otherwise did not name a proper respondent. Petitioner is seeking to challenge a Nevada state justice court misdemeanor conviction on a fully-expired sentence while currently in custody in an Arizona facility apparently for federal immigration authorities. The Court is not called upon to express a definitive opinion as to who the proper respondent should be in that context, as the Court need note here only that petitioner clearly has not named a proper respondent. See 1976 Advisory Committee Notes to Rule 2(b) of the Rules Governing Section 2254 Cases (discussing the possible respondents for various possible situations).
Fifth, while petitioner signed the declaration on the pleading that he filed, he did not sign the pleading itself. He must sign both the pleading and the accompanying declaration.
Due to these multiple defects, the pauper application will be denied without prejudice and the petition in this improperly-commenced action will be dismissed without prejudice. It does not appear that a dismissal without prejudice to a new federal action would materially impact adjudication of any issue in a promptly filed new action or otherwise cause substantial prejudice.
It is therefore ordered that the application (dkt. no. 1) to proceed in forma pauperis is denied without prejudice and that this action shall be dismissed without prejudice.
It is further ordered that a certificate of appealability is denied. Jurists of reason would not find the dismissal of this improperly-commenced action to be either debatable or incorrect, given the multiple substantial defects presented and the absence of any substantial collateral prejudice to petitioner from the dismissal without prejudice.
The Clerk of Court shall send petitioner two (2) copies each of a pauper application form for a prisoner and a § 2254 petition form, along with one (1) copy of the instructions for ...