IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEBRASKA

JOSE LUIS LORENZONA JR.,

Petitioner, 

vs. 

Respondent.

8:23CV166

MEMORANDUM AND ORDER

This matter is before the Court on what has been docketed as Petitioner Jose Luis 

Lorenzona, Jr.’s (“Petitioner”) Petition for Writ of Habeas Corpus brought pursuant to 28 

U.S.C. § 2254. Filing No. 1. The Court hereby notifies Petitioner that it intends to 

characterize the document at Filing No. 1 as a petition for writ of habeas corpus pursuant 

to 28 U.S.C. § 2254. In the alternative, Petitioner may move to voluntarily withdraw his 

habeas corpus petition within 30 days. See Castro v. United States, 540 U.S. 375, 382–

83 (2003) (requiring notice, warning, and opportunity to amend or withdraw before 

recharacterization of pro se litigant’s motion as initial motion under 28 U.S.C. § 2255; 

when these requirements unsatisfied, recharacterized motion not considered § 2255

motion rendering later motion successive); see also Martin v. Overton, 391 F.3d 710, 713 

(6th Cir. 2004) (applying Castro to § 2254 petition). Should Petitioner decide to allow this 

action to proceed as one brought pursuant to § 2254, he should be aware of his obligation 

to raise all his habeas corpus claims in this action. This is because there is a statutory 

prohibition against successive petitions by state prisoners codified in 28 U.S.C. § 2244. 

In addition, if Petitioner decides to allow this action to proceed as a § 2254 habeas 

action, then he must cure the deficiencies discussed below. First, Petitioner failed to 

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include the $5.00 filing fee. Petitioner has the choice of either submitting the $5.00 fee to 

the Clerk’s office or submitting a request to proceed in forma pauperis. If Petitioner 

chooses to do the latter, the enclosed pauper’s forms should be completed and returned 

to this Court. Failure to take either action within 30 days will result in the Court dismissing 

this case without further notice to Petitioner. 

Second, Petitioner has not signed the petition under penalty of perjury, which is 

required to proceed. See, e.g. 28 U.S.C. § 2242 and Rule 2(c)(5) of the Rules Governing 

Section 2254 Cases in the United States District Courts.

Third, a habeas corpus petition must “substantially follow either the form appended 

to [the Rules Governing Section 2254 Cases in the United States District Courts], or a 

form prescribed by a local district-court rule.” See Rule 2 of the Rules Governing Section 

2254 Cases in the United States District Courts. Petitioner did not use the Form AO 241

Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. Instead, in a single-page,

handwritten document, Petitioner appears to assert that he noticed several problems with 

discovery during his criminal case and was prevented from conferring with his attorney, 

but he does not clearly indicate the decision or action he is challenging or the grounds 

upon which he seeks habeas relief.

Fourth, Petitioner failed to name any respondent in the Petition, rendering it clearly 

deficient. See Filing No. 1. Rule 2(a) of the Rules Governing Section 2254 Cases in the 

United States District Courts states that “if the petitioner is currently in custody under a 

state-court judgment, the petition must name as respondent the state officer who has 

custody.” In habeas corpus challenges to present physical confinement, the default rule 

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is that the proper respondent is the warden of the facility where the prisoner is being held.

Rumsfeld v. Padilla, 542 U.S. 426, 434 (2005). 

Based on these deficiencies, Petitioner’s petition is deemed insufficient, and the 

Court will not act upon it. However, on the Court’s own motion, Petitioner will have 30 

days in which to file an amended petition for writ of habeas corpus if he wants this action 

to proceed as a § 2254 habeas action. To be clear, if Petitioner decides to allow this 

action to proceed, then Petitioner must (1) either pay the $5.00 fee or submit a request to 

proceed in forma pauperis and (2) file an amended petition for writ of habeas corpus 

under 28 U.S.C. § 2254 that is originally signed under the penalty of perjury. The Court 

will direct the Clerk of the Court to send to Petitioner the AO 241 Petition for Writ of 

Habeas Corpus Under 28 U.S.C. § 2254.

IT IS THEREFORE ORDERED that:

1. Petitioner shall no later than July 17, 2023, voluntarily withdraw his petition 

if he does not want this action to proceed as one brought pursuant to 28 U.S.C. § 2254.

2. If Petitioner decides to allow this action to proceed as one brought pursuant 

to 28 U.S.C. § 2254, he shall no later than July 17, 2023, file an amended petition for writ 

of habeas corpus that is originally signed under penalty of perjury. Petitioner is 

encouraged to use the enclosed official Form AO 241. To avoid confusion, any document 

Petitioner sends to the Clerk of the Court for filing in this case must clearly display the 

case number (8:23CV166). 

3. Petitioner is directed to submit the $5.00 fee to the Clerk’s office or submit 

a request to proceed in forma pauperis by July 17, 2023, if he intends to pursue this 

matter. 

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4. If Petitioner fails to respond to this Memorandum and Order or file an 

amended petition, the Court will construe Petitioner’s pleading as a petition filed pursuant 

to 28 U.S.C. § 2254 and this matter will be dismissed without prejudice and without further 

notice to Petitioner for the deficiencies described herein.

5. The Clerk of the Court is directed to send to Petitioner the Form AO 240 

(“Application to Proceed Without Prepayment of Fees and Affidavit”) and the Form AO

241 Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254.

6. The Clerk of the Court is directed to set a pro se case management deadline 

in this matter with the following text: July 17, 2023: Check for MIFP or payment and 

motion to withdraw or amended petition.

Dated this 16th day of June, 2023.

BY THE COURT:

Joseph F. Bataillon

Senior United States District Judge

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