Richard Milbourn v. LeGrande et al

Filing 5

ORDER - This action is dismissed without prejudice to the filing of a new petition in a new action. # 3 Motion is denied. Clerk shall send 2 copies each of IFP, and 2254 forms with instructions (Mailed to P 4/21/2016.) P may file a new petition i n a new action but he may not file further documents in this action. A certificate of appealability is denied. Clerk shall enter judgment accordingly. Signed by Judge Miranda M. Du on 4/21/2016. (Copies have been distributed pursuant to the NEF - DRM) (Main Document 5 replaced on 4/21/2016) (DRM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RICHARD MILBOURN,

Case No. 3:15-cv-00545-MMD-VPC

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Petitioner,

ORDER

v.
ROBERT LeGRANDE, et al.,
Respondents.

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28

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U.S.C. § 2254 by a Nevada state prisoner. Neither a filing fee nor an application to

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proceed in forma pauperis was submitted with the petition. When filing a habeas action,

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petitioner must either submit the $5.00 filing fee for habeas petitions or an application to

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proceed in forma pauperis. Due to the lack of an in forma pauperis application or filing

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

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a new action with a pauper application with all required attachments. It does not appear

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from the papers presented that a dismissal without prejudice would result in a promptly-

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filed new petition being untimely. In this regard, petitioner at all times remains responsible

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for calculating the running of the limitations period as applied to his case and properly

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commencing a timely-filed habeas corpus action.

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It is therefore ordered that this action is dismissed without prejudice to the filing of
a new petition in a new action.
It is further ordered that petitioner’s motion for a copy of the order of judicial
determination (dkt. no. 3) in this case is denied.

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It is further ordered that the Clerk of the Court send petitioner two copies of an in

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forma pauperis application form for a prisoner, one copy of the instructions for the same,

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two copies of a blank 28 U.S.C. § 2254 habeas petition form, and one copy of instructions

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for the same.

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It is further ordered that petitioner may file a new petition in a new action, but he
may not file further documents in this action.

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It is further 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

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debatable or wrong.

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It is further ordered that the Clerk of the Court enter judgment accordingly.

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DATED THIS 21st day of April 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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