McCully v. Peterson ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 ********* 6 JUSTIN McCULLY, Case No. 3:24-cv-00497-ART-CLB 7 Petitioner, ORDER v. 8 JANNAH PETERSON, 9 Respondent. 10 11 Pro se Petitioner Justin McCully has submitted to the court a petition for 12 writ of habeas corpus on a form designed to be used in the Nevada state district 13 court. The petition challenges a judgment of conviction for domestic violence 14 entered in the Eighth Judicial District Court for Clark County, Nevada. ECF No. 15 1-1. A petition for writ of habeas corpus filed by a person who is not 16 represented by an attorney must be on the form provided by this court. LSR 3- 17 1, Local Rules of Practice, U.S. District Court of Nevada. In addition, McCully’s 18 petition fails to set for the any grounds for relief. Rule 4 of the Rules Governing 19 Habeas Petitions under 28 U.S.C. § 2254 “allows a district court to dismiss 20 summarily the petition on the merits when no claim for relief is stated.” 21 Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) 22 Not only is his petition facially defective, McCully has not properly 23 commenced this habeas action by either paying the standard $5.00 filing fee or 24 filing complete application to proceed in forma pauperis (“IFP”). Pursuant to 28 25 U.S.C. § 1914(a) and the Judicial Conference Schedule of Fees, a $5.00 filing fee 26 is required to initiate a habeas action in a federal district court. The court may 27 authorize an indigent inmate to begin a habeas action without paying the $5.00 28 1 fee if he or she submits an IFP application on the approved form and includes 2 three documents: (a) the inmate’s financial declaration and acknowledgement 3 showing an inability to prepay fees and costs, (b) a financial certificate signed 4 by the inmate and an authorized prison official, and (c) a copy of the inmate’s 5 account statement for the six-month period prior to filing. See 28 U.S.C. § 6 1915(a), LSR 1-1, LSR 1-2. 7 Rather than summarily dismiss this case, the court will give McCully an 8 opportunity to correct the foregoing defects. 9 It is therefore ordered that McCully shall have 30 days from the date this 10 order is entered to file a habeas petition on the form provided by the court. 11 McCully must also file an IFP application that includes a: (a) financial certificate 12 signed by McCully and an authorized prison official, (b) financial declaration 13 and acknowledgement signed by McCully, and (c) copy of McCully’s inmate 14 account statement for the six-month period prior to filing. Alternatively, 15 McCully must pay the $5.00 filing fee within 30 days. If McCully decides to pay 16 the filing fee from his inmate account, McCully must arrange to have a copy of 17 this order attached to the check for the filing fee. 18 It is further ordered that McCully’s failure to timely comply with this 19 order will result in the dismissal of his petition without prejudice and without 20 further advance notice. 21 It is further ordered that the Clerk shall send McCully two copies each of 22 an application form to proceed in forma pauperis for incarcerated persons and a 23 noncapital Section 2254 habeas petition form, and one copy of the instructions 24 for each form. 25 // 26 // 27 // 28 // 1 It is further ordered that the Clerk is directed to change the place of 2 || incarceration currently listed for McCully on the court’s docket from Northern 3 || Nevada Correctional Center to Southern Desert Correctional Center and send 4 || documents to McCully at that location. 5 6 DATED THIS 7th day of November, 2024. 7 een : Free Wossnd? 9 ANNER TRAUM 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28