Hernandez v. Gentry et al

Filing 3

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is DENIED as moot. The clerk shall file the petition for a writ of habeas corpus. FURTHER ORDERED that this action is DISMISSED without prejudice in favor of theearlier-filed action, Hernandez v. Gentry, 2:17-cv-02565-JAD-CWH. The clerk of the court shall enter judgment accordingly. FURTHER ORDERED that a certificate of appealability shall not issue. FURTHER ORDERED that the clerk shall add Adam Paul Laxalt, Attorney Gen eral for the State of Nevada, as counsel for respondents and shall electronically serve respondents with a copy of the petition and a copy of this order. No response by respondents is necessary. Signed by Judge Richard F. Boulware, II on 12/5/2017. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ROBERT HERNANDEZ,

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Petitioner,

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vs.

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JO GENTRY, et al.,

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Case No. 2:17-cv-02826-RFB-VCF

Respondents.

ORDER

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Petitioner has filed an application to proceed in forma pauperis (ECF No. 1) and a petition for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner had filed an earlier action before the

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Honorable Jennifer A. Dorsey that challenged his custody pursuant to the same state-court judgment

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of conviction, Hernandez v. Gentry, 2:17-cv-02565-JAD-CWH. On October 26, 2017, the court

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dismissed that action because petitioner did not commence the action with either payment of the filing

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fee or an application to proceed in forma pauperis. Petitioner then simultaneously paid the filing fee

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in the earlier action and commenced this action with the correct financial documents. On November

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21, 2017, the court reinstated the earlier action. This action now is redundant, and the court will dismiss

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it.

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Reasonable jurists would not find the court’s decision to be debatable or wrong, and the court
will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF No. 1
is DENIED as moot.

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IT IS FURTHER ORDERED that the clerk of the court file the petition for a writ of habeas
corpus.

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IT IS FURTHER ORDERED that this action is DISMISSED without prejudice in favor of the

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earlier-filed action, Hernandez v. Gentry, 2:17-cv-02565-JAD-CWH. The clerk of the court shall enter

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judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability shall not issue.

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IT IS FURTHER ORDERED that the clerk shall add Adam Paul Laxalt, Attorney General for

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the State of Nevada, as counsel for respondents.
IT IS FURTHER ORDERED that the clerk shall electronically serve respondents with a copy
of the petition and a copy of this order. No response by respondents is necessary.
DATED: December 5, 2017

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_________________________________
RICHARD F. BOULWARE, II
United States District Judge

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