McCune v. Legrand et al

Filing 3

ORDER dismissing case without prejudice to the filing of a new action with a properly completed IFP application; denying a certificate of appealability; directing Clerk to send petitioner forms, instructions, and papers (mailed 2/11/2015); directing clerk to enter judgment accordingly and close case. Signed by Judge Robert C. Jones on 2/11/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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DONALD RAY MCCUNE,
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Petitioner,

3:14-cv-00600-RCJ-VPC

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vs.
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ORDER
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LEGRAND, et al.,
Respondents.

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Petitioner has filed a pro se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254

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(ECF #1). However, petitioner has failed to submit an application to proceed in forma pauperis or pay

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the filing fee. Accordingly, this matter has not been properly commenced. 28 U.S.C. § 1915(a)(2) and

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Local Rule LSR1-2.

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Thus, the present action will be dismissed without prejudice to the filing of a new petition in a

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new action with an application to proceed in forma pauperis on the proper form with both an inmate

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account statement for the past six months and a properly executed financial certificate.

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It does not appear from the papers presented that a dismissal without prejudice will materially

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affect a later analysis of any timeliness issue with regard to a promptly filed new action. The court notes

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that it is unclear whether petitioner has exhausted his federal claims in the state courts. A petitioner

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must first fairly present and exhaust all federal constitutional claims raised on federal habeas review in

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the state courts. Petitioner at all times remains responsible for properly exhausting his claims, for

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calculating the running of the federal limitation period as applied to his case, and for properly

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commencing a timely-filed federal habeas action.

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IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice to the

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filing of a new petition in a new action with a properly completed application form to proceed in forma

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pauperis.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED, as jurists of

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reason would not find the court’s dismissal of this improperly commenced action without prejudice to

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be debatable or incorrect.

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IT IS FURTHER ORDERED that the Clerk shall send petitioner two copies each of an

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application form to proceed in forma pauperis for incarcerated persons and a noncapital Section 2254

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habeas petition form, one copy of the instructions for each form, and a copy of the papers that he

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submitted in this action.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and
close this case.

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DATED: This 11th day of February, 2015
Dated this ______ day of February, 2015.

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UNITED STATES DISTRICT JUDGE
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