Toavs v. Baca et al

Filing 10

ORDER - Clerk shall send P 2254 form with instructions. (Mailed to P 11/9/2015.) "AMENDED" petition due by 12/9/2015. Signed by Judge Robert C. Jones on 11/9/2015. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8
9

BERTON G. TOAVS,

10

Petitioner,

11

vs.

12

Case No. 3:14-cv-00211-RCJ-VPC

ISIDRO BACA, et al.,

13

ORDER

Respondents.

14
15

The court directed petitioner to show cause why this action should not be dismissed as

16

untimely. Order (#5). Petitioner has submitted a response (#9). Petitioner argues that he never has

17

received any notice that on March 6, 2008, the Nevada Supreme Court had affirmed the denial of his

18

state habeas corpus petition. Without knowing more about the proceedings in state court, this court

19

accepts petitioner’s argument for the moment, but respondents may raise the issue of timeliness later

20

if they wish.

21

The court has reviewed the petition pursuant to Rule 4 of the Rules Governing Section 2254

22

Cases in the United States District Courts. The sole ground for relief is that the state courts took too

23

long to decide petitioner’s state habeas corpus petition. The ground is moot because on March 6,

24

2008, six years before petitioner commenced this action, the Nevada Supreme Court affirmed the

25

denial of the state habeas corpus petition. The court will give petitioner the opportunity to file an

26

amended petition that alleges other grounds for relief.

27
28

IT IS THEREFORE ORDERED that the clerk of the court shall send petitioner a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. Petitioner shall have

1

thirty (30) days from the date that this order is entered in which to file an amended petition to

2

correct the noted deficiencies. Neither the foregoing deadline nor any extension thereof signifies or

3

will signify any implied finding of a basis for tolling during the time period established. Petitioner

4

at all times remains responsible for calculating the running of the federal limitation period under 28

5

U.S.C. § 2244(d)(1) and timely asserting claims. Failure to comply with this order will result in the

6

dismissal of this action.

7

IT IS FURTHER ORDERED that petitioner shall clearly title the amended petition as such

8

by placing the word “AMENDED” immediately above “Petition for a Writ of Habeas Corpus

9

Pursuant to 28 U.S.C. § 2254” on page 1 in the caption, and petitioner shall place the case number,

10
11

3:14-cv-00211-RCJ-VPC, above the word “AMENDED.”
DATED: This 9th day of November, 2015.
Dated:

12
13

_________________________________
ROBERT C. JONES
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-