Perez v. Nevens et al

Filing 7

ORDER. IT IS THEREFORE ORDERED that the Clerk shall file and ELECTRONICALLY SERVE 1 -1 the petition on the respondents. No response is required by respondents. IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada Attorney Ge neral, as counsel for respondents.IT IS FURTHER ORDERED that 3 petitioner's motion for stay is DENIED. IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice as set forth in this order. IT IS FURTHER ORDERED that a c ertificate of appealability is DENIED, as jurists of reason would not find the courts denial of the motion to stay to be debatable or incorrect.IT IS FURTHER ORDERED that 2 petitioner's motion for appointment of counsel is DENIED as moot.IT IS FURTHER ORDERED that the 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, a nd a copy of the papers that he submitted in this action.IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case. Signed by Chief Judge Gloria M. Navarro on 12/12/16. (Copies have been distributed pursuant to the NEF - ADR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

RICARDO PEREZ,

10

Case No. 2:16-cv-01908-GMN-VCF
Petitioner,

ORDER

v.
11
NEVENS, et al.,
12
Respondents.
13
14

Before the court is a pro se petition for writ of habeas corpus pursuant to 28

15

U.S.C. § 2254, submitted by Ricardo Perez, a Nevada state prisoner (ECF No. 1-1). He

16

has now paid the filing fee (ECF No. 6). Perez has moved for a stay of these federal

17

proceedings until his state habeas petition is resolved (ECF No. 3). He indicates that

18

judgment of conviction was entered on or about November 25, 2014, that he failed to

19

file a direct appeal, and that he then filed a timely state postconviction petition for a writ

20

of habeas corpus on September 29, 2015, which is currently pending in state district

21

court. See id.

22

The Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect on April

23

24, 1996 and imposes a one-year statute of limitations on the filing of federal habeas

24

corpus petitions. 28 U.S.C. § 2244(d). The one-year time limitation can run from the

25

date on which a petitioner’s judgment became final by conclusion of direct review, or the

26

expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). Further, a

27

properly filed petition for state postconviction relief can toll the period of limitations. 28

28

U.S.C. § 2244(d)(2).
1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

In Pace v. DiGuglielmo, 544 U.S. 416, the United States Supreme Court
indicated that a petitioner facing the “predicament” that could occur if he is waiting for a
final decision from the state courts as to whether his petition was “properly filed” should
file a “protective” federal petition and ask the federal court for a stay and abeyance.
See also, Rudin v. Myles, 766 F.3d 1161, 1174 (9th Cir. 2014).
Perez 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. 3). 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, p. 2). Perez
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. 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 Perez’s state-court
proceedings.
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 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.
IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice as
set forth in this order.

27
28
2

1
2
3
4
5
6
7
8
9
10
11

IT IS FURTHER ORDERED that a certificate of appealability is DENIED, as
jurists of reason would not find the court’s denial of the motion to stay to be debatable or
incorrect.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel
(ECF No. 2) is DENIED as moot.
IT IS FURTHER ORDERED that the 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 that he submitted in this action.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly
and close this case.

12
13
14
DATED: 12 December 2016.
15
GLORIA M. NAVARRO, CHIEF JUDGE
UNITED STATES DISTRICT COURT

16
17
18
19
20
21
22
23
24
25
26
27
28
3