Cobb v. McDaniels et al

Filing 4

ORDER - # 1 IFP Application is DENIED and this action is DISMISSED without prejudice to the filing of a new petition in a new action with a properly completed IFP application. FURTHER ORD a certificate of appealability is DENIED. FURTHER ORD Clerk shall send P 2 copies each IFP and 2254 forms w instructions, and copy of the papers he submitted in this action. ( Mailed to P 2/11/2015. ) FURTHER ORD Clerk shall enter judgment and close this case. Signed by Judge Robert C. Jones on 2/11/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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DELBERT COBB,
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Petitioner,

3:14-cv-00642-RCJ-VPC

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vs.
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ORDER
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E.K. MCDANIELS, et al.,
Respondents.

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Petitioner has submitted an application (#1) to proceed in forma pauperis and a habeas petition.

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The matter has not been properly commenced because the pauper application does not include

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all required attachments. Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR1-2, a petitioner must

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attach both an inmate account statement for the past six months and a properly executed financial

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certificate. Petitioner did not attach a financial certificate or an inmate account statement for the past

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six months. The application therefore is incomplete.

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Further, petitioner has not submitted his petition on the form required by this court, nor does his

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submission substantially conform to the form. As the form prescribes, a petition shall set forth each

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ground for which petitioner claims his state court conviction and/or sentence is unconstitutional and

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summarize briefly the facts supporting each ground. Legal argument or long lists of case citations are

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not appropriate.

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The application for leave to proceed in forma pauperis therefore 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 on the proper form with all required attachments.

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It does not appear from the papers presented that a dismissal without prejudice will materially
affect a later analysis of any timeliness issue with regard to a promptly filed new action.1

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IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis is

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DENIED and that this action shall be DISMISSED without prejudice to the filing of a new petition

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in a new action with a properly completed pauper application.

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IT FURTHER IS 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 FURTHER IS 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.

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IT FURTHER IS ORDERED that the Clerk of Court shall enter judgment accordingly and
close this case.
DATED: This 11th day of February, 2015
DATED:

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__________________________________
UNITED STATES DISTRICT JUDGE

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With regard to timeliness, the online docket records of the state courts indicate that the Nevada Supreme Court
affirmed the denial of petitioner’s state postconviction petition in Case No. 61929 on May 13, 2014, and remittitur
issued on June 24, 2014. Petitioner at all times remains responsible for properly exhausting his claims, for calculating
the running of the federal limitation period as applied to his case, and for properly commencing a timely-filed federal
habeas action.

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