Berry v. Williams Sr et al

Filing 3

ORDER that this action is DISMISSED without prejudice to the filing of a new petition in a new action with a properly completed application form to proceed in forma pauperis. A certificate of appealability is Denied. The Clerk shall enter judgment accordingly and close the case. Signed by Judge Andrew P. Gordon on 10/24/2016. (Copies have been distributed pursuant to the NEF - 2 IFP forms/2254 Petitions and 1 copy of instructions for both mailed to Petitioner - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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EDWARD BERRY,

Case No. 2:16-cv-02344-APG-GWF

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Petitioner,

ORDER

v.
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BRIAN WILLIAMS, SR, et al.,
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Respondents.
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Petitioner has submitted a pro se petition for writ of habeas corpus, pursuant to

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28 U.S.C. § 2254 (ECF No. 1-1). However, petitioner has failed to submit an application

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to proceed in forma pauperis or pay the filing fee. Accordingly, this matter has not been

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properly commenced. 28 U.S.C. § 1915(a)(2) and Local Rule LSR1-2.

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Thus, the present action will be dismissed without prejudice to the filing of a new

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petition in a new action with either the $5.00 filing fee or a completed application to

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proceed in forma pauperis on the proper form with both an inmate account statement for

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the past six months and a properly executed financial certificate.

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Further, petitioner indicates on the face of his petition that his appeal of the

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denial of his state postconviction petition is pending before the Nevada Supreme Court

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(ECF No. 1-1, pp. 1-2; see also Nevada Supreme Court Case No. 71279). A federal

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court will not grant a state prisoner’s petition for habeas relief until the prisoner has

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exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S.

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509 (1982); 28 U.S.C. § 2254(b).

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opportunity to act on each of his claims before he presents those claims in a federal

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habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v.

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Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has

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given the highest available state court the opportunity to consider the claim through

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direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d

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896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).

A petitioner must give the state courts a fair

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As indicated by both the petitioner and the state court docket, petitioner is
currently pursuing state postconviction relief, and therefore, his petition is at least
partially unexhausted. 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 has exhausted all available state
remedies. 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 this action is DISMISSED without prejudice
to the filing of a new petition in a new action with a properly completed application form
to proceed in forma pauperis.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED, as
jurists of reason would not find the court’s dismissal of this improperly commenced
action without prejudice to be debatable or incorrect.
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.

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DATED: 24 October 2016.
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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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