Sanchez v. State of Nevada et al

Filing 18

ORDER denying as moot 11 Motion to Compel; denying 13 Motion for Reconsideration; and granting 14 Motion for Copy of Docket Sheet (copy mailed to petitioner 4/3/14). The Court certifies that any appeal from this order is not taken in good faith. Signed by Judge Robert C. Jones on 4/3/14. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

5
6
7
FORTINO SANCHEZ,
8
Petitioner,

3:13-cv-00415-RCJ-VPC

9
vs.
10
ORDER
11

STATE OF NEVADA, et al.,

12

Respondents.

13
14

This closed action by a Nevada state inmate comes before the Court on petitioner’s

15

motion (#13) for reconsideration as well as on his motion (#11) to compel and motion (#14)

16

for a copy of the docket sheet. The motion for reconsideration was filed within the time period

17

for seeking relief under Rule 59.

18

Background

19

The papers on file along with the online dockets of the state courts reflect the following.

20

Petitioner Fortino Sanchez was convicted in Nevada state court, pursuant to a jury

21

verdict, of three counts of lewdness with a child under the age of fourteen and one count of

22

sexual assault of a minor under the age of fourteen.

23

The judgment of conviction in No. C268118 in the state district court was filed on

24

March 6, 2012. Sanchez filed a direct appeal through counsel under No. 60582 in the state

25

supreme court. Briefing was completed in the state supreme court on October 11, 2013, and

26

the matter is under review in that court.

27

During the pendency of the direct appeal, the still-represented petitioner filed numerous

28

proper person papers in the state district court, including a February 12, 2013, state post-

1

conviction petition. The state district court took the petition off the calendar due to the

2

pending direct appeal. Petitioner filed a proper person appeal from that action by the state

3

district court, under No. 63527. The state supreme court dismissed the appeal in No. 63527

4

for lack of jurisdiction on September 9, 2013. The court thereafter denied a petition for

5

rehearing on November 13, 2013, and the remittitur issued on December 10, 2013.

6
7

Meanwhile, during the pendency of the foregoing state court proceedings, including the
direct appeal proceedings, petitioner commenced this federal action.

8

On August 2, 2013, the Clerk received a one-page handwritten and unsigned

9

document. The page had a caption of “Fortino Sanchez v. the State of Nevada” and a citation

10

to 28 U.S.C. § 2254(b)(1)(c). The paper stated that the representation by the state public

11

defender’s office fell below professional norms because counsel failed to file a motion for a

12

speedy trial.

13

Petitioner neither paid the filing fee nor submitted a pauper application with the

14

foregoing paper. The paper further was not presented on either the habeas petition form or

15

the civil rights complaint form required by the Court’s local rules.

16

On August 5, 2013, the Clerk received a paper by petitioner forwarded from the Court

17

of Appeals. The paper included the first page and the signature page from the Court’s § 2254

18

form, but there was no statement of claims between the pages. Petitioner instead had

19

inserted copies of apparent state court record exhibits between the pages.

20

Petitioner thereafter filed a number of motions and other papers, including motions

21

seeking a stay of the federal action pending completion of the state proceedings and ordering

22

state counsel to provide documents to petitioner.

23

On September 17, 2013, the Court entered final judgment dismissing the improperly

24

commenced action without prejudice. The Court noted that the action had not been properly

25

commenced because neither a filing fee nor filing fee had been submitted with the action, and

26

petitioner had used the first and last pages of the required petition form essentially as a cover

27

document for other papers rather than to state claims.

28

////
-2-

1
2

Prior to dismissing the action without prejudice to a properly commenced new action
under a new docket number, the Court expressly found:
. . . . 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 federal
limitation period as applied to his case, properly commencing a
timely-filed federal habeas action, and properly exhausting his
claims in the state courts.

3
4
5
6
7

#9, at 2.
Discussion

8
9

In his motion for reconsideration, petitioner states that “his only request in this writ, was

10

his discovery” and that “there was no challenge to the validity of his [judgment of conviction]

11

at this point.”

12

Regardless of what relief petitioner is seeking, he first must properly commence a

13

federal civil action in order to seek federal judicial relief. In order to properly commence a

14

federal civil action, petitioner: (a) must satisfy the filing fee requirement, either by paying the

15

required filing fee or by filing a properly completed pauper application;1 and (b) must file a

16

pleading, such as a habeas petition or a civil rights complaint. Petitioner may not simply file

17

a freestanding motion or request for relief, such as for production of documents.

18
19

This improperly commenced action thus was properly dismissed without prejudice due
to the multiple substantial defects in petitioner’s papers.

20

Given that petitioner’s state direct appeal still is pending, the one-year federal limitation

21

period for a habeas action has not even begun to run. The dismissal without prejudice

22

therefore would not result in a new action being untimely.2 Nor would the dismissal without

23

prejudice result in other substantial prejudice to petitioner. Petitioner can make the same

24
25
26
27
28

1

The filing fee for a habeas petition is $5. The filing fee for all other civil actions, including actions
seeking relief other than challenging a judgment of conviction, is $350.00.
2

Petitioner at all times remains responsible for calculating the running of the federal limitation period
as applied to his case, properly commencing a timely-filed federal action, and properly exhausting his claims
in the state courts.

-3-

1

request for relief that he has made in this improperly commenced action instead in a new

2

properly commenced action under a new docket number. The Court expresses no opinion

3

as to whether petitioner may obtain the relief sought, which essentially seeks federal judicial

4

intervention in a pending state criminal case that still is on direct appeal.

5

IT THEREFORE IS ORDERED that the motion (#13) for reconsideration is DENIED.

6

IT FURTHER IS ORDERED that the motion (#14) for a copy of a docket sheet is

7
8
9

GRANTED and that the Clerk shall send petitioner an updated docket sheet.
IT FURTHER IS ORDERED that all remaining motions on file at the time of this order
are DENIED as moot.

10

IT FURTHER IS ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a)(3)

11

that any appeal from this order is not taken in good faith and that the Clerk shall prominently

12

reflect this certification on the docket. The Court notes in this regard that petitioner neither

13

has applied for nor been granted pauper status. Assuming arguendo that petitioner were to

14

seek to appeal in forma pauperis, a similar appeal by a non-indigent litigant would be

15

dismissed for lack of a substantial issue. The Court dismissed an improperly commenced

16

action without prejudice to the filing of a new properly commenced action. Petitioner’s federal

17

limitation period for a habeas action has not commenced as yet, and the dismissal without

18

prejudice otherwise will not result in substantial prejudice. Petitioner is seeking a federal court

19

order directing his state public defender – who currently is representing petitioner on a

20

pending state criminal direct appeal – to provide him copies of file materials.3
DATED:

21

April 3, 2014

22
23

_________________________________
ROBERT C. JONES
United States District Judge

24
25
26
27
28

3

The recent denial of a petition for mandamus was without prejudice to the filing of a renewed petition if the
district court had not ruled on the pending September 2013 motions within 90 days. This Court would trust that the
Court of Appeals in future will take into account recent nationwide judicial resource reductions, as well as the judicial
emergency that this particular court has been operating under, in setting such time periods.

-4-