Dearing v. State of Nevada

Filing 5

ORDER that this case is DISMISSED without prejudice to Dearing's ability to file a petition for a writ of habeas corpus in a new, separate case. The Clerk shall detach and file the Motion to Vacate at ECF No. 1-1. FURTHER ORDERED that the Motion to Vacate is DENIED. The Clerk of Court is also directed to SEND to Dearing two copies each of an application form to proceed in forma pauperis for prisoners, a noncapital § 2254 habeas petition form, one copy of the instructions for each form, and a copy of the papers that he submitted in this action. Signed by Judge Jennifer A. Dorsey on 11/13/2017. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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David L. Dearing,

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Petitioner

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Order Dismissing Case

v.

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2:17-cv-02516-JAD-GWF

State of Nevada, et al.,

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[ECF No. 1-1]

Respondents

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Pro se petitioner David Dearing is serving an 18-month sentence after he was convicted

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of domestic-violence battery, coercion, and petit larceny.1 He filed a motion to vacate, set aside,

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or correct his sentence under 28 U.S.C. § 2255,2 but he has not paid the filing fee or filed an

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application to proceed in forma pauperis. Dearing seems to actually challenge a state judgment

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of conviction, so he needs to file a § 2254 petition for a writ of habeas corpus on this court’s

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form. This matter, therefore, has not been properly commenced.3

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Accordingly, IT IS HEREBY ORDERED that this case is DISMISSED without

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prejudice to Dearing’s ability to file a petition for a writ of habeas corpus in a new, separate

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case. If Dearing chooses to file a habeas petition, he must either: (1) pay the $5.00 filing fee, or

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(2) file a completed application to proceed in forma pauperis on the proper form with a properly

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executed financial certificate and inmate-account statements.

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Dearing at all times remains responsible for properly exhausting his claims, for

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calculating the federal limitations period as applied to his case, and for properly commencing a

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timely filed federal habeas action.

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The Clerk of Court is directed to DETACH and FILE the motion to vacate [ECF No.

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ECF No. 1-1 at 2.

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Id.

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28 U.S.C. § 1915(a)(2) (2016), Local Rules LSR1-2, 3-1.

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1-1].

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IT IS FURTHER ORDERED that the motion to vacate [ECF No. 1-1] is DENIED.

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The Clerk of Court is also directed to SEND to Dearing two copies each of an

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application form to proceed in forma pauperis for prisoners, a noncapital § 2254 habeas petition

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form, one copy of the instructions for each form, and a copy of the papers that he submitted in

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this action.

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DATED: November 13, 2017.

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_______________________________
Jennifer A. Dorsey
United States District Judge

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