Gonzalez v. Cox et al

Filing 2

ORDER DISMISSING CASE without prejudice. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Clerk of Court shall send petitioner two copies of each a noncapital habeas petition form and a pauper long form along with one copy of t he instructions for the forms and of the papers submitted in this action. Clerk shall enter final judgment dismissing this action without prejudice. Signed by Judge Andrew P. Gordon on 11/26/13. (Copies have been distributed pursuant to the NEF - cc: petitioner - EDS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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HENRY FROMETA GONZALEZ,

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Petitioner,

2:13-cv-02166-APG-GWF

vs.

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ORDER
JAMES GREG COX, et al.,

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Respondents.
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Petitioner has filed a habeas petition under 28 U.S.C. § 2254 without properly
commencing the action by paying the filing fee or filing a pauper application.
It does not appear that a dismissal without prejudice would materially impact the
analysis of application of the limitation period or other issues in a promptly filed new action or
otherwise cause substantial prejudice.1

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The online docket records of this Court and the state courts reflect the following.

Petitioner Henry Gonzalez alleges that his sentence currently is not been properly calculated
following a partial reversal on selected charges by the state supreme court and an April 9, 2012, amended
judgment of conviction. He maintains that he is required to serve only sixty percent of the maximum 60
months to which he originally was sentenced in the March 10, 2010, judgment of conviction, with credit for
217 days for time served. A purported June 5, 2012, grievance response attached with the petition reflects a
disagreement with petitioner’s computation of his sentence credits and stated a projected expiration date of
June 3, 2013.

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Meanwhile, the state district court records reflect that petitioner was sentenced in a different matter,
No. C-12-285383-1, to 12 to 48 months, consecutive to this case, No. 09C257037, and with no credit for time
served. The judgment of conviction in the later case was filed on May 28, 2013.

(continued...)

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The present improperly-commenced action therefore will be dismissed without
prejudice to the filing of a new action.

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IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice

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to the filing of a new petition in a new action accompanied by either the required filing fee or

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a properly completed application to proceed in forma pauperis.

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

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

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to be debatable or wrong, as no substantial prejudice will result. See text at n.1 and n.1.

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The Clerk of Court shall SEND petitioner two copies each of a noncapital habeas

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petition form and a pauper form along with one copy of the instructions for the forms and of

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the papers submitted in this action.

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The Clerk of Court shall enter final judgment dismissing this action without prejudice.
DATED: November 26, 2013.

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_________________________________
ANDREW P. GORDON
United States District Judge

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(...continued)

The online records of the state courts further reflect that petitioner has filed no judicial proceedings –
as opposed to prison grievances as reflected by the exhibits to the petition – in the state courts and pursued
through to a decision on the merits by the state supreme court challenging the calculation of his sentence.
He further concedes in the federal petition that he has pursued no state judicial remedies.
It thus would appear that: (a) a dismissal of the present action without prejudice will not materially
impact an analysis of any limitation period issues pertaining to petitioner’s challenge to his current sentence
calculation; (b) any arguendo timely federal petition filed at this point would be wholly unexhausted and thus
subject to immediate dismissal; and (c) petitioner is not necessarily subject to immediate release outside of
an institution given his incarceration on an intervening sentence. The Court notes that the accrual of
sentencing credit is subject to a number of requirements and contingencies under Nevada state law.

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Petitioner indisputably is well aware from his prior litigation history of how to properly commence a
civil action in federal court. He has filed multiple prior actions in this Court with a pauper application. See,
e.g., Nos. 2:09-cv-01179, 2:10-cv-01447, 2:11-cv-2061, and 2:13-cv-01542. He further has had two prior
actions – including a recent habeas action – dismissed without prejudice for failure to properly commence an
action without either paying the filing fee or submitting a pauper application. See 2:07-cv-00613 and 2:13-cv01699. Petitioner should not expect to follow the same flawed procedure but yet obtain a different result.

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