Sharpe v. Nevin et al

Filing 4

ORDER. IT THEREFORE IS ORDERED that 1 Application to Proceed in Forma Pauperis is DENIED and that this action shall be DISMISSED without prejudice. IT FURTHER IS ORDERED that a certificate of appealability is DENIED. IT FURTHER IS ORDERED that t he clerk shall send petitioner two copies each of an application form to proceed in forma pauperis for incarcerated persons and a noncapital section 2254 habeas petition form, one copy of the instructions for each form, and a copy of the papers th at he submitted in this action. IT IS FURTHER ORDERED that 2 Motion for Appointment of Counsel is DENIED as moot. IT FURTHER IS ORDERED that the clerk of court shall enter judgment accordingly and close this case. Signed by Judge James C. Mahan on 8/11/2016. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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PHILLIP SHARPE,
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Petitioner,

2:16-cv-01841-JCM-VCF

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vs.
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ORDER
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NEVIN, et al.,
Respondents.

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Petitioner has submitted an application to proceed in forma pauperis and a habeas petition. ECF

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No. 1.

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

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all required attachments. Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, a petitioner must

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attach both an inmate account statement for the past six months and a properly executed financial

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certificate. Petitioner did not attach a financial certificate or an inmate account statement for the past

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six months. The application therefore is incomplete.

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The application for leave to proceed in forma pauperis therefore will be denied, and the present

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

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application on the proper form with all required attachments.

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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 promptly filed new action.1

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With regard to timeliness, the online docket records of the state courts indicate that the Nevada Supreme Court

(continued...)

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IT THEREFORE IS ORDERED that the application to proceed in forma pauperis is DENIED

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and that this action shall be DISMISSED without prejudice to the filing of a new petition in a new

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action with a properly completed pauper application.

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IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of reason

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would not find the court’s dismissal of this improperly commenced action without prejudice to be

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debatable or incorrect.

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IT FURTHER IS ORDERED that the clerk shall send petitioner two copies each of an

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application form to proceed in forma pauperis for incarcerated persons and a noncapital section 2254

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habeas 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.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel (ECF No.
2) is DENIED as moot.
IT FURTHER IS ORDERED that the clerk of court shall enter judgment accordingly and
close this case.
DATED: August 11, 2016.

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__________________________________
UNITED STATES DISTRICT JUDGE

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(...continued)

affirmed petitioner’s conviction on June 4, 2015, denied his petition for rehearing on July 31, 2015,and denied his
petition for en banc reconsideration on September 3, 2015. 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.

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