Brown v. Eighth Judicial District Court

Filing 3

ORDER. IT IS ORDERED that this action shall be dismissed without prejudice. IT FURTHER IS ORDERED that a certificate of appealability is denied. The clerk of court shall send petitioner: (a) a copy of his papers in this action; (b) two copies o f an inmate pauper application form and one copy of the instructions; and (c) two copies of an AO-0242 form for a § 2241 petition, which can be retrieved from the forms page on the JNet. The clerk shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Judge James C. Mahan on 10/27/17. (Copies have been distributed pursuant to the NEF -cc: Adam Laxalt - ADR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 MARLON LORENZO BROWN, Petitioner, 9 10 2:17-cv-02708-JCM-GWF ORDER vs. 11 12 13 EIGHTH JUDICIAL DISTRICT COURT, Respondent. 14 15 Petitioner, a state pretrial detainee, has filed a habeas petition under 28 U.S.C. § 2241 16 without properly commencing the action by paying the filing fee or filing a pauper application. 17 This is the second habeas action that petitioner has commenced recently without either 18 paying the filing fee or filing a pauper application. The present papers were filed after the 19 dismissal of the prior action, and it appears that petitioner used the § 2241 petition form that 20 the clerk forwarded with the dismissal order. 21 As the court stated in the prior dismissal order, petitioner must properly commence 22 each action that he files by contemporaneously either paying the filing fee or submitting a 23 properly completed pauper application in that action. 24 commenced is subject to immediate dismissal absent substantial prejudice. Any action that is not properly 25 It does not appear that a dismissal of this improperly-commenced action without 26 prejudice to the filing of a new and properly commenced action under a new docket number 27 would constitute the functional equivalent of a dismissal with prejudice or otherwise cause 28 substantial prejudice. Petitioner is challenging his pretrial detention by state authorities; and 1 the one-year limitation period of 28 U.S.C. § 2244(d) is not applicable to such an action, which 2 arises under § 2241 rather than § 2254. 3 This action, like the one before it, will be dismissed, for the same reason. 4 IT THEREFORE IS ORDERED that this action shall be dismissed without prejudice. 5 IT FURTHER IS ORDERED that a certificate of appealability is dened. Jurists of 6 reason would not find debatable whether the court was correct in its dismissal of the action 7 without prejudice on procedural grounds, for the reasons discussed herein. 8 IT FURTHER IS ORDERED, pursuant to Rule 4 of the Rules Governing Section 2254 9 Cases, that the clerk shall make informal electronic service upon respondents by adding state 10 attorney general Adam P. Laxalt as counsel for respondents and directing a notice of 11 electronic filing of this order to his office. No response is required from respondents other 12 than to respond to any orders of a reviewing court. 13 The clerk of court shall send petitioner: (a) a copy of his papers in this action; (b) two 14 copies of an inmate pauper application form and one copy of the instructions; and (c) two 15 copies of an AO-0242 form for a § 2241 petition, which can be retrieved from the forms page 16 on the JNet.1 17 18 The clerk shall enter final judgment accordingly, dismissing this action without prejudice. DATED: October 27, 2017. 19 20 21 _________________________________ JAMES C. MAHAN United States District Judge 22 23 24 25 26 27 28 1 Petitioner additionally should attach copies of all state court decisions addressing the claims that he raises in the federal petition. The court does not imply by omission that the papers presented are not subject to other deficiencies. Federal courts generally may not interfere in pending state criminal prosecutions absent extraordinary circumstances. See Younger v. Harris, 401 U.S. 37 (1970). Further, petitioner must name his immediate physical custodian, in this instance the sheriff, as respondent. -2-

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