Murray v. Williams

Filing 5

ORDER that 1 application to proceed in forma pauperis is DENIED and this action is DISMISSED without prejudice. IT IS FURTHER ORDERED that all pending motions are DENIED without prejudice. IT IS FURTHER ORDERED that a CERTIFICATE OF APPEALABILIT Y is DENIED. Clerk shall send petitioner 2 copies of in forma pauperis application, instructions, and a copy of the papers he submitted. Clerk shall enter judgment accordingly, dismissing this action without prejudice. Signed by Judge Kent J. Dawson on 11/19/2012. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STEVEN NELSON MURRAY,
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Petitioner,

2:12-cv-01032-KJD-PAL

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vs.
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ORDER
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BRIAN WILLIAMS, SR., et al.,
Respondents.

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Petitioner has submitted an application (#1) to proceed in forma pauperis and a habeas
petition.
The matter has not been properly commenced because petitioner submitted

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incomplete financial paperwork. 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 submitted only a partial copy of the first

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page of the inmate account statement, which typically is a thirteen-page long computer

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printout. Without the complete printout showing daily account activity over the full six-month

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period, the Court is unable to assess whether the current balance on the financial certificate

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is representative of petitioner’s ability to pay. The Court is unable to see, inter alia, the

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regularity and amount of any incoming funds as well as the extent to which petitioner is

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making discretionary expenditures that instead could be applied to payment of the filing fee.

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Petitioner further did not use the Court’s required habeas petition form to state his

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claims. Under Local Rule LSR 3-1, a petitioner must file the petition on the Court’s required

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Section 2254 petition form. In the present case, petitioner in essence used the petition form

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as a cover document for a 55-page memorandum. Petitioner instead must state his claims

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in the body of the petition form itself. He may not incorporate other documents in the petition.

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He must file a petition on the required verified petition form specifically alleging the factual

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particulars supporting his grounds for relief therein, not an unverified legal memorandum.

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Due to the multiple defects presented, the pauper application will be denied, and the

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present action will be dismissed without prejudice to the filing of a new petition in a new action

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with a pauper application with all required attachments. It does not appear from the papers

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presented that a dismissal without prejudice would result in a promptly-filed new petition being

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untimely.1 In this regard, petitioner at all times remains responsible for calculating the running

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of the federal limitation period as applied to his case, properly commencing a timely-filed

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federal habeas action, and properly exhausting his claims in the state courts.

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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 with all new – and

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complete – financial attachments.

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IT FURTHER IS ORDERED that all pending motions are DENIED without prejudice.

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

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

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be debatable or wrong.

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

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forma pauperis for incarcerated persons and a noncapital Section 2254 habeas petition form,

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

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

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Petitioner Steven Murray was convicted, pursuant to a jury verdict, of DUI causing substantial bodily
harm and vehicular hom icide. The Suprem e Court of Nevada affirm ed the conviction on February 3, 2011.
The ninety-day tim e period for filing a petition for a writ of certiorari in the United States Suprem e Court
expired on May 4, 2011. Meanwhile, on April 4, 2011, petitioner filed a state post-conviction petition. The
state district court denied relief, and the Suprem e Court of Nevada affirm ed. The rem ittitur issued on June 4,
2012. It thus would appear that very little of the one-year federal lim itation period has run at this juncture.

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The Clerk shall enter final judgment accordingly, dismissing this action without
prejudice.
DATED: November 19, 2012

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____________________________________
KENT J. DAWSON
United States District Judge

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