Sims v. Williams

Filing 31

ORDER Denying 26 Motion to Reopen Case. Denying 27 Motion for Reconsideration. Signed by Judge James C. Mahan on 8/28/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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WAYNE SIMS,

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Petitioner,

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vs.

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BRIAN WILLIAMS, et al.,

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Case No. 2:08-cv-00393-JCM-GWF

Respondents.

ORDER

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On July 15, 2014, the court denied petitioner’s motion to reopen (#22). Order (#25). On

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July 17, 2014, the court received a document that has been docketed as another motion to reopen

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(#26). It appears actually to be an untimely reply to respondents’ opposition to motion to reopen

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(#24). Respondents have filed an opposition (#28), and petitioner has filed a reply (#30). Petitioner

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also has submitted a motion for reconsideration (#27) of the denial of petitioner’s motion to reopen,

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and respondents have filed an opposition (#29).

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Petitioner complains that the court denied his motion to reopen without first considering his

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reply. He is incorrect. The briefing schedule for his motion to reopen (#22) expired at least ten (10)

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days before the court received his reply. At any rate, nothing in what has been docketed as another

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motion to reopen (#26) would change the court’s decision. Petitioner asked the court to dismiss the

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action without prejudice. The court granted that request, and the court warned petitioner that

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nothing in the order affected the running of the one-year period of limitation of 28 U.S.C.

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§ 2244(d)(1). Order (#17).

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In the motion for reconsideration (#27), petitioner states that his intention all along was to

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commence a new action. If true, then he does not need the court’s permission in this action to

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commence a new action, because the dismissal of this action was without prejudice. He just needs

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to commence a new action. However, the court makes no promises whether the new action would

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be timely pursuant to 28 U.S.C. § 2244(d)(1). The court also makes no statement on what other

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procedural defenses to the petition in the new action might apply.

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IT IS THEREFORE ORDERED that petitioner’s motion to reopen (#26) is DENIED.

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IT IS FURTHER ORDERED that petitioner’s motion for reconsideration (#27) is DENIED.

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DATED: August 28, 2014.

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_________________________________
JAMES C. MAHAN
United States District Judge

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