-WGC Burriola v. Palmer et al, No. 3:2011cv00708 - Document 5 (D. Nev. 2011)
Court Description: ORDERED that the Clerk of Court shall file the motion (# 1 -1) to correct illegal sentence, that said motion is DENIED, and that this action is DISMISSED without prejudice. FURTHER ORDERED that a certificate of appealability is DENIED. The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Chief Judge Robert C. Jones on 10/27/2011. (Copies have been distributed pursuant to the NEF - DRM)
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-WGC Burriola v. Palmer et al Doc. 5 1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 9 ANTHONY BURRIOLA, 10 Petitioner, 3:11-cv-00708-RCJ-WGC 11 vs. ORDER 12 13 14 PALMER, et al., Respondents. 15 16 17 This habeas action comes before the Court for initial review under Rule 4 of the Rules Governing Section 2254 Cases, following upon payment of the filing fee (#4). 18 Under Local Rule LSR 3-1, petitioner may challenge a state court conviction and/or 19 sentence only upon the Court’s required Section 2254 petition form. In the present case, 20 petitioner seeks to file a handwritten motion to correct an illegal sentence. There is no such 21 vehicle for challenging a state court conviction or sentence in federal court. A petitioner 22 instead must file a Section 2254 habeas petition on the Court’s required petition form. 23 The matter therefore will be dismissed without prejudice. A dismissal of this matter 24 without prejudice will not materially impact the analysis of whether or not a subsequent 25 petition is untimely, successive and/or otherwise deficient. Petitioner is seeking to challenge 26 his February 23, 1999, judgment of conviction in No. C143171 in the Eighth Judicial District 27 Court, State of Nevada. Petitioner previously challenged the same conviction in No. 3:06-cv- 28 00059-PMP-RAM, and the Court dismissed that petition as untimely. Petitioner sought to Dockets.Justia.com 1 challenge the same conviction again in No. 3:10-cv-00357-LRH-VPC, and the Court 2 dismissed that petition as successive.1 3 IT THEREFORE IS ORDERED that the Clerk of Court shall file the motion (#1-1) to 4 correct illegal sentence, that said motion is DENIED, and that this action is DISMISSED 5 without prejudice. 6 IT FURTHER IS ORDERED that a certificate of appealability is DENIED. Jurists of 7 reason would not find the Court’s dismissal of the action without prejudice to be debatable or 8 incorrect. 9 10 The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. DATED: October 27, 2011. 11 12 13 ____________________________________ ROBERT C. JONES Chief United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 1 27 28 Nothing in this order holds or im plies that the papers and claim s are not free of other deficiencies. For exam ple, petitioner alleges that his conviction for second degree m urder should be set aside due to the alleged use of a Kazalyn charge. However, a Kazalyn charge concerns the distinction between first degree m urder and second degree m urder. Petitioner was not convicted of first degree m urder. -2-
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