Ayala v. Gentry et al

Filing 4

ORDER dismissing case without prejudice. The petitioner may file a new petition in a new action, but may not file further documents in this action. Certificate of Appealability is denied. Case terminated. Signed by Judge Andrew P. Gordon on 6/13/2017. (Copies have been distributed pursuant to the NEF, cc: IFP, 2254 and Petition to P - JM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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OMAR AYALA,
Petitioner,
vs.

Case No. 2:17-cv-01617-APG-GWF
ORDER

JO GENTRY, 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. Neither a filing fee nor an application to proceed in forma pauperis was

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submitted with the petition. When filing a habeas action, petitioner must either submit the $5.00

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filing fee for habeas petition or an application to proceed in forma pauperis. Due to the lack of an

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in forma pauperis application or filing fee, the present action will be dismissed without prejudice to

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the filing of a new petition in a new action with a pauper application with all required attachments.

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It does not appear from the papers presented that a dismissal without prejudice would result in a

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promptly-filed new petition being untimely. In this regard, petitioner at all times remains

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responsible for calculating the running of the limitations period as applied to his case and properly

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commencing a timely-filed habeas corpus action.

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IT THEREFORE IS ORDERED that this action is DISMISSED without prejudice to the
filing of a new petition in a new action.

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

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following: (1) two copies of an in forma pauperis application form for a prisoner and one copy of

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the instructions for the same, (2) two copies of a blank 28 U.S.C. § 2254 habeas petition form and

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one copy of instructions for the same; and (3) the petition.

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IT IS FURTHER ORDERED that petitioner may file a new petition in a new action, but
may not file further documents in this action.
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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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.

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Dated: June 13, 2017.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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