Ayala v. Gentry et al
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)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 2:17-cv-01617-APG-GWF
JO GENTRY, et al.,
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
by a Nevada state prisoner. Neither a filing fee nor an application to proceed in forma pauperis was
submitted with the petition. When filing a habeas action, petitioner must either submit the $5.00
filing fee for habeas petition or an application to proceed in forma pauperis. Due to the lack of an
in forma pauperis application or filing fee, the present action will be dismissed without prejudice to
the filing of a new petition in a new action with a pauper application with all required attachments.
It does not appear from the papers presented that a dismissal without prejudice would result in a
promptly-filed new petition being untimely. In this regard, petitioner at all times remains
responsible for calculating the running of the limitations period as applied to his case and properly
commencing a timely-filed habeas corpus action.
IT THEREFORE IS ORDERED that this action is DISMISSED without prejudice to the
filing of a new petition in a new action.
IT IS FURTHER ORDERED that the Clerk of the Court shall send petitioner the
following: (1) two copies of an in forma pauperis application form for a prisoner and one copy of
the instructions for the same, (2) two copies of a blank 28 U.S.C. § 2254 habeas petition form and
one copy of instructions for the same; and (3) the petition.
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
jurists would not find the dismissal of the improperly-commenced action without prejudice to be
debatable or wrong.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.
Dated: June 13, 2017.
ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE
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