Houston v. Howell

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 MATTHEW HOUSTON, Case No. 2:19-cv-01740-APG-BNW 4 Petitioner, ORDER v. 5 JERRY HOWELL, et al., 6 Respondents. 7

8 Petitioner Matthew Houston has submitted a petition for a writ of habeas corpus under 28 9 U.S.C. § 2241. Houston is challenging his custody based on a judgment of conviction of a state 10 court so 28 U.S.C. § 2254 governs this action. He will need to file an amended petition on the 11 court’s § 2254 petition form. 12 Houston asks for monetary relief but that is not available in a habeas corpus action. 13 Additionally, because the relief he requests would necessarily imply that his custody is invalid, 14 he must first obtain relief from the judgment of conviction through a habeas corpus petition 15 before he can obtain any monetary relief. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). 16 Houston’s amended petition should not ask for monetary relief. 17 Houston has not paid the filing fee, nor has he filed an application to proceed in forma 18 pauperis. He will need to do one of these things before the action can proceed. 19 I THEREFORE ORDER that petitioner Houston must file an application for leave to 20 proceed in forma pauperis. The clerk of the court shall send Houston a blank non-inmate 21 application packet.1 In the alternative, Houston shall make the necessary arrangements to pay 22

23 1 https://www.nvd.uscourts.gov/wp-content/uploads/2017/08/Application-to-Proceed-in-Forma- Pauperis-Non-Inmate.pdf 1 the filing fee of $5.00, accompanied by a copy of this order. Houston will have 45 days from the 2 date that this order is entered to comply. Failure to comply will result in the dismissal of this 3 action. 4 I FURTHER ORDER that the clerk of the court shall file the petition for a writ of habeas 5 corpus currently in the docket at ECF No. 1-1.

6 I FURTHER ORDER that the clerk of the court shall send Houston a petition for a writ 7 of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. Houston shall have 45 8 days from the date that this order is entered to file an amended petition to correct the noted 9 deficiencies. That deadline does not signify any implied finding of a basis for tolling during the 10 time period established. Houston at all times remains responsible for calculating the running of 11 the federal limitation period under 28 U.S.C. § 2244(d)(1) and timely asserting claims. Failure 12 to comply with this order will result in the dismissal of this action. 13 I FURTHER ORDER that Houston shall clearly title the amended petition as such by 14 placing the word “AMENDED” immediately above “Petition for a Writ of Habeas Corpus

15 Pursuant to 28 U.S.C. § 2254” on page 1 in the caption, and he shall place the case number, 2:19- 16 cv-01740-APG-BNW, above the word “AMENDED.” 17 I FURTHER ORDER that the clerk shall add Aaron Ford, Attorney General for the State 18 of Nevada, as counsel for respondents. 19 I FURTHER ORDER that the clerk shall electronically serve upon the respondents a 20 copy of the petition and this order. The respondents’ counsel shall enter a notice of appearance 21 / / / / 22 / / / / 23 1}| within 20 days of entry of this order, and no further response shall be required from the 2|| respondents until further order of the court. 3 Dated: October 15, 2019. 5 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23