Valez v. Neven et al

Filing 2

ORDER that 1 Application to Proceed in forma pauperis is DENIED and this action shall be DISMISSED without prejudice for the filing of a new action with a properly completed pauper application. IT IS FURTHER ORDERED that a CERTIFICATE OF APPEALAB ILITY IS DENIED. Clerk of Court shall send petitioner two copies each of an application to proceed in forma pauperis and a 2254 habeas petition, one copy of instructions for each, and a copy of the papers that he submitted in this action. Clerk shall enter judgment accordingly. Signed by Judge Kent J. Dawson on 5/25/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CARLOS VALEZ,
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Petitioner,

2:12-cv-00872-KJD-GWF

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vs.
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ORDER
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D.W. NEVEN, et al.,

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Respondents.

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Petitioner has submitted an application (#1) to proceed in forma pauperis and a habeas
petition.

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The matter has not been properly commenced because the pauper application does

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not include the required attachments. Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2,

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petitioner must attach both an inmate account statement for the past six months and a

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properly executed financial certificate. Petitioner attached neither.

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Moreover, petitioner did not use the Court’s required petition form as required by Local

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Rule LSR 3-1. Petitioner used the first two pages and last two pages of the federal form as

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a cover-document for a statement of his grounds for relief that was simply photocopied from

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his state petition. He further used a single page from the federal form after this copied state-

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court material to respond to the exhaustion inquiries collectively as to all four grounds

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presented. Petitioner instead must allege his grounds on the Court’s required petition form,

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and, as per the form, he must respond to the exhaustion inquiries on a separate page

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separately for each ground.

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The application therefore will be denied, and the present action will be dismissed

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without prejudice to the filing of a new petition in a new action with a pauper application with

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all required attachments.

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without prejudice would result in a promptly-filed new petition being untimely. In this regard,

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petitioner at all times remains responsible for calculating the running of the federal limitation

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period as applied to his case, properly commencing a timely-filed federal habeas action, and

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properly exhausting his claims in the state courts.1

It does not appear from the papers presented that a dismissal

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IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis

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is DENIED and that this action shall be DISMISSED without prejudice to the filing of a new

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petition in a new action with a properly completed pauper application.

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IT FURTHER IS ORDERED that a certificate of appealability is DENIED. Reasonable

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jurists would not find dismissal of the improperly-commenced action without prejudice

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debatable or wrong.

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The Clerk of Court shall send petitioner two copies each of an application form to

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proceed in forma pauperis for incarcerated persons and a noncapital Section 2254 habeas

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The papers on file and the online docket records of the state courts reflect the following.

In July 2008, petitioner entered a guilty plea to one count of first-degree kidnapping with the use of a
deadly weapon and two counts of conspiracy to com m it battery. The state district court sentenced petitioner
on the conspiracy counts, suspended sentence and placed petitioner on probation, and stayed adjudication of
the kidnapping count. The state district court later revoked probation for a violation and sentenced petitioner
on the kidnapping count, in an order and am ended judgm ent of conviction filed on August 19, 2010. The
Suprem e Court of Nevada affirm ed the am ended judgm ent of conviction on appeal on June 8, 2011, in No.
56852.
Meanwhile, while the foregoing appeal was pending, on or about April 4, 2011, petitioner filed a state
post-conviction petition challenging the am ended judgm ent of conviction. The state district court dism issed
the petition as untim ely on the prem ise that the state lim itations period ran from its first judgm ent on February
3, 2009. The Suprem e Court of Nevada held on appeal in No. 59041, however, that the state lim itations
period had not begun running after that order because adjudication had been stayed on the kidnapping count.
The state suprem e court held that a final judgm ent had not been entered until August 19, 2010, and that the
state lim itations period did not begin to run until the July 5, 2011, issuance of the rem ittitur in No. 56852. The
Suprem e Court of Nevada instead affirm ed the denial of the state post-conviction petition principally on the
m erits. The rem ittitur issued on April 4, 2012.

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The present federal petition was m ailed for filing on or about May 18, 2012. As of that tim e, it would
appear that only about six weeks of the one-year federal lim itation period had run.

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petition form, one copy of the instructions for each form, and a copy of the papers that he

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submitted in this action.

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The Clerk shall enter final judgment accordingly, dismissing this action without
prejudice.
DATED: May 25, 2012

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____________________________________
KENT J. DAWSON
United States District Judge

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