Summers v. McDaniels

Filing 7

ORDER denying 6 petitioner's Motion for District Judge to Reconsider Order. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. See order re specifics. Signed by Judge Larry R. Hicks on 12/28/09. (Copies have been distributed pursuant to the NEF - SL)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court dismissed this action because Petitioner had not submitted a petition for a writ of habeas corpus within the allotted time. Order (#4). Petitioner has submitted a Motion for Reconsideration (#6). Petitioner argues that the time given was too short because he does not have a complete copy of what the Court assumes is his state post-conviction petition for a writ of habeas corpus, and because he cannot afford to make photocopies. The Court's dismissal was without prejudice. Petitioner may commence a new action at any time, subject to the period of limitation of 28 U.S.C. 2244(d). Furthermore, merely having an action open without a petition does not make a subsequently filed petition timely, because the relevant date for calculating the timeliness of the action is when Petitioner mails the actual petition. See Stillman v. Lamarque, 319 F.3d 1199, 1201 (9th Cir. 2003). Reasonable jurists would not disagree with the Court's conclusion, and the Court denies a certificate of appealability. /// /// vs. E. K. MCDANIELS, et al., Respondents. CHARLES A. SUMMERS, Petitioner, Case No. 3:09-cv-00613-LRH-(RAM) ORDER UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS THEREFORE ORDERED that Petitioner's Motion for Reconsideration (#6) is DENIED. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. DATED this 28th day of December, 2009. _________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE -2-

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