Castaneda v. Warden et al

Filing 3

ORDER. IT IS ORDERED that 1 the application to proceed in forma pauperis is DENIED. IT IS FURTHER ORDERED that 2 the request for appointment of counsel is DENIED. IT IS FURTHER ORDERED that the clerk of the court shall send petitio ner a blank form for an application to proceed in forma pauperis for incarcerated litigants and a blank form for a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. IT IS THEREFORE ORDERED that this action is DISMISS ED without prejudice to petitioner's commencement of a new action in which he either pays the filing fee in full or submits a complete application to proceed in forma pauperis, accompanied by a signed financial certificate and a statement of his inmate account. The clerk of the court shall enter judgment accordingly and close this action. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Richard F. Boulware, II on 2/26/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANTHONY CASTANEDA,

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Petitioner,

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vs.

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Case No. 2:16-cv-02955-RFB-GWF

WARDEN, HIGH DESERT STATE
PRISON,

ORDER

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Respondent.
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Petitioner has filed an application to proceed in forma pauperis (ECF No. 1) and a request for

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appointment of counsel (ECF No. 2). The court denies these motions and dismisses this action for two

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reasons. First, petitioner did not include with his application to proceed in forma pauperis a statement

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of his inmate account and a financial certificate signed by a prison official, as required by 28 U.S.C. §

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1915(a)(2) and Local Rule LSR 1-2. Second, petitioner did not submit a petition for a writ of habeas

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corpus. He has presented no grounds for relief, nor has he alleged any facts about his criminal case, and

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the court cannot evaluate whether appointment of counsel would be warranted.

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The court dismisses this action without prejudice, but petitioner needs to be mindful of the one-

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year statute of limitation of 28 U.S.C. § 2244(d). The time that this action was open has no effect upon

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the running of the one-year period. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Also, because

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petitioner did not file a petition, no grounds exist to which grounds in a subsequent petition could relate

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back. See Mayle v. Felix, 545 U.S. 644, 664 (2005). Petitioner remains responsible for ensuring that

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he files a timely habeas corpus petition.

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Reasonable jurists would not find the court’s conclusions to be debatable or wrong, and the court
will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF No. 1)
is DENIED.
IT IS FURTHER ORDERED that the request for appointment of counsel (ECF No. 2) is
DENIED.

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IT IS FURTHER ORDERED that the clerk of the court shall send petitioner a blank form for

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an application to proceed in forma pauperis for incarcerated litigants and a blank form for a petition for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

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IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice to

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petitioner’s commencement of a new action in which he either pays the filing fee in full or submits a

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complete application to proceed in forma pauperis, accompanied by a signed financial certificate and

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a statement of his inmate account. The clerk of the court shall enter judgment accordingly and close

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this action.

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

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DATED: February 26, 2017.

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_________________________________
RICHARD F. BOULWARE, II
United States District Judge

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