Sanchez v. State of Nevada et al
Filing
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ORDERED that this action shall be DISMISSED without prejudice to the filing of a new petition in a new action with a properly completed pauper application with all new and complete financial attachments. FURTHER ORD that all pending motions are DENIED without prejudice. FURTHER ORD that a certificate of appealability is DENIED. Clerk shall send petitioner 2 copies each of an application form to proceed in forma pauperis for incarcerated persons and a noncapital Section 2254 ha beas petition form, 1 copy of the instructions for each form, and a copy of the papers that he submitted. ( Forms and docs mailed to P 9/17/2013. ) Clerk shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Chief Judge Robert C. Jones on 9/16/2013. (Copies have been distributed pursuant to the NEF - DRM) Modified on 9/17/2013 for font (DRM).
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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FORTINO SANCHEZ,
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Petitioner,
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vs.
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STATE OF NEVADA,
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Respondent.
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3:13-cv-00415-RCJ-VPC
ORDER
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This action was transferred to this Court by the Ninth Circuit Court of Appeals. ECF No. 1.
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Petitioner Fortino Sanchez has submitted a document entitled petition for a writ of habeas corpus. He
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has not paid the filing fee nor filed an application to proceed in forma pauperis.
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When the filing fee is not prepaid, under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2,
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petitioner must apply for leave to proceed in forma pauperis. The petitioner must attach both an inmate
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account statement for the past six months and a properly executed financial certificate. Petitioner has
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not submitted any fee or documentation. Without the complete printout showing daily account activity
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over the full six-month period, the Court is unable to assess whether the current balance on the financial
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certificate is representative of petitioner's ability to pay. The Court is unable to see, inter alia, the
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regularity and amount of any incoming funds as well as the extent to which petitioner is making
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discretionary expenditures that instead could be applied to payment of the filing fee.
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Petitioner further did not use the Court’s required habeas petition form to state his claims. Under
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Local Rule LSR 3-1, a petitioner must file the petition on the Court’s required Section 2254 petition
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form. In the present case, petitioner in essence used the petition form as a cover document for a several
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page motion for new counsel in his on-going state court proceedings. It appears from the state of these
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documents that petitioner is confused about the process and purpose of a federal habeas action.
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Due to the multiple defects presented, the pauper application will be denied, and the present
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action will be dismissed without prejudice to the filing of a new petition in a new action with a pauper
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application with all required attachments. It does not appear from the papers presented that a dismissal
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without prejudice would result in a promptly-filed new petition being untimely. In this regard, petitioner
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at all times remains responsible for calculating the running of the federal limitation period as applied
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to his case, properly commencing a timely-filed federal habeas action, and properly exhausting his
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claims in the state courts.
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IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice to
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the filing of a new petition in a new action with a properly completed pauper application with all new
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– and complete – financial attachments.
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IT FURTHER IS ORDERED that all pending motions are DENIED without prejudice.
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IT FURTHER IS ORDERED that a certificate of appealability is DENIED. Reasonable jurists
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would not find the dismissal of the improperly-commenced action without prejudice to be debatable or
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wrong.
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The Clerk shall send petitioner two copies each of an application form to proceed in forma
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pauperis for incarcerated persons and a noncapital Section 2254 habeas petition form, one copy of the
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instructions for each form, and a copy of the papers that he submitted.
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The Clerk shall enter final judgment accordingly, dismissing this action without prejudice.
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DATED: This 16th day of September, 2013.
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______________________________
UNITED STATES DISTRICT JUDGE
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