Jackson v. The State of Nevada

• Court: District Court, D. Nevada
• Decided: January 25, 2021
• Docket: 3:21-cv-00035
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 JOHN L. JACKSON, Case No. 3:21-cv-00035-HDM-WGC

6 Petitioner, v. ORDER 7 THE STATE OF NEVADA, et al., 8 Respondents. 9 10 Pro se Petitioner John L. Jackson, a Nevada state prisoner, 11 initiated this habeas corpus action with a Motion to Correct 12 Illegal Sentence and Motion for Appointment of Counsel. (ECF 13 Nos. 1-2, 1-3.) Currently before the Court is Jackson’s 14 Application to Proceed In Forma Pauperis (“IFP”) (ECF No. 1).1 15 A $5.00 filing fee is required to initiate a habeas action in 16 a federal district court. 28 U.S.C. § 1914(a); Judicial Conference 17 Schedule of Fees. The court may authorize a person to begin an 18 action without prepaying fees and costs if the person demonstrates 19 indigency. 28 U.S.C. § 1915; LSR 1-1, 1-2. The IFP application 20 must be submitted on a form provided by the court and include 21 specific financial information and a declaration confirming under 22 the penalty of perjury that the financial information is true. Id. 23 Here, Jackson’s IFP application and supporting documents show 24 he is able to pay the $5 filing fee. Thus, he does not qualify for 25 a fee waiver. The Court therefore denies the IFP application and 26 1 The initial screening under the Rules Governing Section 2254 Cases in 27 the United States District Courts (“Habeas Rule(s)”) and consideration of Jackson’s motions are deferred to until such time as he has fully 28 1 gives Jackson until March 8, 2021, to pay the $5 filing fee. 2 In addition, two errors require Jackson to amend his pleading. 3 First, Jackson filed a “motion to correct illegal sentence.” 4 However, he is in custody pursuant to a state court judgment of 5 conviction, so the only proper basis for his claims is 28 U.S.C. 6 § 2254. See White v. Lambert, 370 F.3d 1002, 1005–07 (9th Cir. 7 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 8 546, 555 (9th Cir. 2010) (en banc). A state prisoner proceeding 9 pro se is required to file his petition for writ of habeas corpus 10 under 28 U.S.C. § 2254 on the court’s approved form. See LSR 3-1; 11 Habeas Rule 2(d). The form is important as it provides the Court 12 with necessary information to conduct a preliminary review. 13 Jackson must therefore file an amended petition on the § 2254 form. 14 Second, Jackson has not named a proper respondent. He named 15 the State of Nevada as the respondent, but that is incorrect. 16 Habeas Rule 2(a) states that, when a petitioner is “in custody 17 under a state-court judgment, the petition must name as respondent 18 the state officer who has custody.”2 Failure to name the proper 19 respondent strips the district court of personal jurisdiction. 20 Smith v. Idaho, 392 F.3d 350, 354 (9th Cir. 2004); Ortiz-Sandoval 21 v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). As such, Jackson is 22 instructed to file an amended petition naming the correct 23 respondent. 24 If Jackson chooses to file an amended petition, he is advised 25 to carefully follow the instructions on the form. The Habeas Rules 26

27 2 This is typically the warden of the prison or detention facility. However, the Court expresses no opinion as to the proper respondent here. 28 Cf. 1 require that a petition: (1) specify all the grounds for relief 2 available to the petitioner; (2) state the facts supporting each 3 ground; (3) state the relief requested; (4) be printed, 4 typewritten, or legibly handwritten; and (5) be signed under 5 penalty of perjury by the petitioner. See Habeas Rule 2(c). The 6 amended petition should set forth the claims in short and plain 7 terms, simply, concisely, and directly. This means Jackson should 8 avoid lengthy legal and factual argument as well as excessive 9 citations to case law. Instead, for each claim he should summarize 10 the information he believes to be relevant in his own words and 11 specifically identify what constitutional right he believes was 12 violated. 13 IT IS THEREFORE ORDERED: 14 1. Petitioner John L. Jackson’s Application to Proceed In 15 Forma Pauperis (ECF No. 1) is DENIED. 16 2. The Clerk of Court is instructed to send Jackson (i) two 17 copies of this order, and (ii) two copies of the form 18 petition for writ of habeas corpus pursuant to 28 U.S.C. 19 § 2254. Jackson must make the necessary arrangements to 20 have a copy of this order attached to the check for the 21 filing fee. 22 3. By March 8, 2021, Jackson must (i) pay the $5.00 filing 23 fee, and (ii) file an amended petition that corrects the 24 noted deficiencies. 25 4. Jackson must clearly title the amended petition as such by 26 writing the words “FIRST AMENDED” immediately above 27 “Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 28 § 2254” on the first page and including 3:21-cv-0035-HDM- 1 WGC in the space for the case number (“CASE NO.”). 2 5. The initial screening of Jackson’s petition under the 3 Habeas Rules and consideration of his motions are deferred 4 until such time as he has fully complied with this order. 5 6. If Jackson fails to comply with this order by the March 8, 6 2021 deadline, this case will be dismissed without 7 prejudice and without further advance notice. 8 DATED: this 25th day of January 2021. 9 + Sota’ □ ft HOWARD D. MCKIBBEN 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28