Patterson v. Neven et al

Filing 7

ORDER Granting 1 Application for Leave to Proceed in forma pauperis; Denying 2 Motion to Appoint Counsel as moot ; Denying 3 Motion to Stay; Denying 4 Motion as moot. Denying 5 Motion as moot.IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly andclose this case. Signed by Judge Andrew P. Gordon on 10/13/2016. (Copies have been distributed pursuant to the NEF - DL)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 JAYSEN ALEXANDER PATTERSON, 5 Case No. 2:16-cv-01145-APG-CWH Petitioner, ORDER v. 6 D.W. NEVEN, et al., 7 Respondents. 8 9 Before the court is a pro se petition for writ of habeas corpus pursuant to 28 10 U.S.C. § 2254, submitted by Jaysen Alexander Patterson, a Nevada state prisoner 11 (ECF No. 1-1). His application to proceed in forma pauperis (ECF No. 1) shall be 12 granted. Patterson has moved for a stay of these federal proceedings until his state 13 habeas petition is resolved (ECF No. 3). He notes that the Nevada Supreme Court 14 affirmed his conviction on October 19, 2015, and that he filed a timely state 15 postconviction petition for a writ of habeas corpus on May 11, 2016, which is currently 16 pending in state district court (ECF No. 1-1).1 The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on April 17 18 24, 1996 and imposes a one-year statute of limitations on the filing of federal habeas 19 corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the 20 date on which a petitioner’s judgment became final by conclusion of direct review, or the 21 expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). A properly 22 filed petition for state postconviction relief can toll the period of limitations. 28 U.S.C. § 23 2244(d)(2). 24 In Pace v. DiGuglielmo, the United States Supreme Court indicated that a 25 petitioner facing the “predicament” that could occur if he is waiting for a final decision 26 from the state courts as to whether his petition was “properly filed” should file a 27 28 1 As the court may take judicial notice of the state-court docket, see also Nevada Supreme Court Case No. 64855 and state district court case no. CR15-0274A. 1 1 2 “protective” federal petition and ask the federal court for a stay and abeyance. 544 U.S. 408, 416 (2005). See also, Rudin v. Myles, 766 F.3d 1161, 1174 (9th Cir. 2014). 3 4 5 6 7 8 Patterson asks this court to consider his federal petition as a protective petition and grant a stay and abeyance until his state-court proceedings conclude (ECF no. 11). He appears to misapprehend that the AEDPA statute of limitations may be tolled pending the resolution of a timely state postconviction petition (see ECF No. 3, pp. 2-3). Patterson does not argue that it is possible that his state petition could be deemed not properly filed, and therefore, he presents no basis for a protective petition here. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Accordingly, this action shall be dismissed without prejudice to the filing of a new habeas petition in a new action with a new case number at the conclusion of Patterson’s state-court proceedings. As indicated, it does not appear from the papers presented that a dismissal without prejudice will materially affect a later analysis of any timeliness issue with regard to a new action filed in a timely manner after petitioner’s state-court proceedings conclude. The court notes that petitioner at all times remains responsible for properly exhausting his claims, for calculating the running of the federal limitation period as applied to his case, and for properly commencing a timely-filed federal habeas action. IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma pauperis (ECF No. 1) is GRANTED. IT IS FURTHER ORDERED that the Clerk shall file and ELECTRONICALLY SERVE the petition (ECF No. 1-1) on the respondents. No response is required by respondents. IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada Attorney General, as counsel for respondents. IT IS FURTHER ORDERED that petitioner’s motion for stay (ECF No. 3) is DENIED. 27 28 2 1 2 3 4 5 6 7 8 9 10 IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice as set forth in this order. IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel (ECF No. 2), motion to supplement petition (ECF No. 4), and motion re default judgment (ECF No. 5) are all DENIED as moot. IT IS FURTHER ORDERED that, as reasonable jurists would not find the dismissal without prejudice of this petition to be debatable or wrong, a certificate of appealability is DENIED. IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case. 11 12 DATED: 13 October 2016. 13 14 ANDREW P. GORDON UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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