Dzik v. State of Nevada ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 MITCHELL DZIK, Case No. 2:22-cv-02113-GMN-EJY 10 Petitioner, ORDER v. 11 STATE OF NEVADA, et al., 12 Respondents. 13 14 Petitioner has submitted a pro se petition for writ of habeas corpus, pursuant to 15 28 U.S.C. § 2254 (ECF No. 1-1). However, petitioner has submitted an incomplete 16 application to proceed in forma pauperis. He has failed to include a signed financial 17 certificate or inmate account statements. Accordingly, this matter has not been properly 18 commenced. 28 U.S.C. § 1915(a)(2) and Local Rule LSR1-2. 19 This action therefore is subject to dismissal without prejudice as improperly 20 commenced. However, the court will give petitioner 30 days to either (1) pay the $5.00 21 filing fee or (2) submit a completed and signed financial certificate and the required 22 inmate account statements. Failure to do so may result in the dismissal of this action 23 without prejudice. 24 The court notes that Dzik’s petition is not on the court’s form as required by the 25 local rules, and it also appears to be unexhausted.1 A federal court will not grant a state 26 prisoner’s petition for habeas relief until the prisoner has exhausted his available state 27 1Petitioner states on the face of his petition that his appeal of the denial of his motion to correct 1 remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his 3 claims before he presents those claims in a federal habeas petition. O’Sullivan v. 4 Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 5 (1995). A claim remains unexhausted until the petitioner has given the highest available 6 state court the opportunity to consider the claim through direct appeal or state collateral 7 review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison 8 v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). 9 IT IS THEREFORE ordered that within 30 days of the date of this order petitioner 10 must either pay the $5.00 filing fee or submit a financial certificate and inmate account 11 statements. 12 IT IS FURTHER ORDERED that if petitioner fails to comply with this order, this 13 action may be dismissed without prejudice. 14 IT IS FURTHER ORDERED that the Clerk of Court SEND to petitioner one copy 15 of the application to proceed in forma pauperis for incarcerated persons, with 16 instructions and one copy of the form 28 U.S.C. § 2254 habeas petition. 17 18 DATED: 18 January 2023. 19 20 21 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27