Balderas-Nunez v. Williams et al

Filing 3

ORDER. IT IS ORDERED that 1 the application to proceed in forma pauperis is DENIED and that this action is DISMISSED WITHOUT PREJUDICE to the filing of a new petition in a new action with a properly completed pauper application with all new and complete financial attachments. IT IS FURTHER ORDERED that the Clerk of Court 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 petitioner may file a new petition and in forma pauperis application in a new action, but he may not file further d ocuments in this action. IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Andrew P. Gordon on 5/15/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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JONATHAN BALDERAS-NUNEZ,
Petitioner,
vs.

Case No. 2:17-cv-00988-APG-VCF
ORDER

BRIAN WILLIAMS, et al.,
Respondents.

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254

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by a Nevada state prisoner. This matter has not been properly commenced because petitioner

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submitted incomplete financial paperwork. Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2,

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petitioner must attach both an inmate account statement for the past six months and a properly

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executed financial certificate. Petitioner in the instant action has failed to submit an in forma

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pauperis application that provides the necessary financial information. Petitioner failed to include a

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copy of his inmate account statement and failed to submit a financial certificate signed by an

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authorized prison or jail officer. The Court is unable to see, inter alia, the regularity and amount of

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any incoming funds as well as the extent to which petitioner is making discretionary expenditures

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that instead could be applied to payment of the filing fee.

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Due to the defects presented, the pauper application will be denied, and the present 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 with all required attachments. It does not appear from the papers presented that a

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dismissal without prejudice would result in a promptly-filed new petition being untimely. In this

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regard, petitioner at all times remains responsible for calculating the running of the federal

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limitation period as applied to his case, properly commencing a timely-filed federal habeas action,

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and properly exhausting his claims in the state courts.

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IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF

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No. 1) is DENIED and that this action is DISMISSED WITHOUT PREJUDICE to the filing of a

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new petition in a new action with a properly completed pauper application with all new and

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complete financial attachments.

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IT IS FURTHER ORDERED that the Clerk of Court shall send petitioner two copies each

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of an application form to proceed in forma pauperis for incarcerated persons and a noncapital

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Section 2254 habeas petition form, one copy of the instructions for each form, and a copy of the

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papers that he submitted in this action.

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IT IS FURTHER ORDERED that petitioner may file a new petition and in forma pauperis
application in a new action, but he may not file further documents in this action.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.

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

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jurists would not find the dismissal of the improperly-commenced action without prejudice to be

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debatable or wrong.

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Dated: Dated15, 2017.
May this ______ day of May, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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