1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 DENNIS ALBA, Case No. 2:21-cv-01899-GMN-DJA

6 Petitioner, v. ORDER 7 UNITED STATES OF AMERICA, et al., 8 Respondents. 9 10 Petitioner Dennis Alba, a pro se Nevada prisoner, has not properly commenced this habeas 11 action by either paying the standard $5.00 filing fee or filing an application for leave to proceed in 12 forma pauperis (“IFP”). He submitted a Petition for Writ of Habeas Corpus (ECF No. 1-1) under 13

, but he did not pay the $5 filing fee or submit an IFP application. 14 Pursuant to

(a) and the Judicial Conference Schedule of Fees, a $5.00 15 filing fee is required to initiate a habeas action in a federal district court. The court may authorize 16 an indigent prisoner to begin a habeas action without paying the $5 fee if he or she submits an IFP 17 application on the approved form and includes three specific documents: (a) the prisoner’s 18 financial declaration and acknowledgement showing an inability to prepay fees and costs, (b) a 19 financial certificate signed by the prisoner and an authorized prison official, and (c) a copy of the 20 prisoner’s account statement for the six-month period prior to filing.

(a); LSR 1- 21 1, LSR 1-2. 22 Petitioner will have 45 days from the date of this order to either pay the $5 filing fee or 23 submit a complete IFP application with all required documentation. 24 Turning to the petition, Petitioner submitted his petition (ECF No. 1-1) on the wrong form. 25 A pro se petitioner is required to file his petition for writ of habeas corpus under

26 on the court’s approved form. See LSR 3-1; Habeas Rule 2(d) of the Rules Governing Section 27 2254 Cases in the United States District Courts. Petitioner filed his petition under 28 U.S.C. 28 § 2241. However, he is in custody pursuant to a state court judgment of conviction, so the only 1 proper basis for his claims is

. See White v. Lambert,

, 1005–07 2 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall,

(9th Cir. 3 2010) (en banc). The form is important as it provides the Court with necessary information to 4 conduct preliminary review of the petition. Accordingly, Petitioner must, within 45 days of the 5 date of this order, file an amended petition for habeas corpus relief on the Court’s form.1 In doing 6 so, Petitioner is advised to follow the instructions on the form and to refrain from lengthy legal or 7 factual argument. 8 Further, Petitioner has not named a proper respondent. Petitioner has named the United 9 States of America as the Respondent. That is incorrect. 10 Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts 11 states that, when a petitioner is “in custody under a state-court judgment, the petition must name 12 as respondent the state officer who has custody.”2 Failure to name the proper respondent strips the 13 district court of personal jurisdiction. Smith v. Idaho,

(9th Cir. 2004); Ortiz- 14 Sandoval v. Gomez,

(9th Cir. 1996). 15 As such, Petitioner is instructed to file an amended petition that names the correct 16 respondent. 17 Petitioner must clearly title the amended petition as such by writing the word 18 “AMENDED” immediately above “Petition for a Writ of Habeas Corpus” on page 1 in the caption, 19 and he must place the case number, 2:21-cv-01899-GMN-DJA, in the designated space. Under 20 Local Rule 15-1, the amended petition must be complete in itself without reference to previously 21 filed papers. Thus, the claims and allegations that are stated in the amended petition will be the 22 only matters remaining before the Court. Any claims or allegations that are left out of the amended 23 petition or that are not re-alleged will not be considered. 24

25 1 Petitioner at all times remains responsible for calculating the applicable statute of 26 limitations. By ordering Petitioner to amend his petition, the Court makes no finding or representation that either the original or amended petition will be considered timely. 27 2 This is typically the warden of the prison or detention facility. However, the Court expresses no opinion as to the proper respondent in this context. Cf. Habeas Rule 2(b), Advisory 28 Committee Note to 1976 Adoption. 1 IT IS THEREFORE ORDERED: 2 1. The Clerk of Court is instructed to MAIL Petitioner (i) a blank form petition for a writ 3 of habeas corpus pursuant to

with instructions, and (ii) a blank form 4 Application to Proceed in Forma Pauperis (“IFP”) for incarcerated litigants with 5 instructions. 6 2. Within 45 days of the date of this order, Petitioner must file a complete IFP application 7 along with (i) a financial certificate executed and signed by the petitioner and an 8 authorized prison official, (ii) a financial acknowledgement executed and signed by the 9 petitioner, and (iii) a statement of his inmate trust account for the six-month period 10 prior to filing. 11 3. Alternatively, Petitioner will pay the $5 filing fee within 45 days. 12 4. Petitioner must file an amended petition on the Court’s form within 45 days. Petitioner 13 must clearly title the amended petition as such by writing the word “AMENDED” 14 immediately above “Petition for a Writ of Habeas Corpus” on page 1 in the caption, 15 and he must place the case number, 2:21-cv-01899-GMN-DJA, in the designated space. 16 5. Petitioner’s failure to comply with this Order by (a) filing an amended petition, and 17 either (b) submitting a complete IFP application, or (c) paying the filing fee within 45 18 days will result in the dismissal of this action without prejudice and without further 19 advance notice.

20 DATED: November 9, 2021

21 ________________________________ 22 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28