Smith v. The State of Nevada et al

Filing 3

ORDER dismissing without prejudice this action; directing Clerk to send Petitioner forms, instructions, and a copy of petition (mailed 5/15/2017); directing Petitioner to file no further documents in this action; denying a certificate of appealability; directing Clerk to enter judgment accordingly. Signed by Judge Miranda M. Du on 5/12/2017. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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SHAYLON SMITH,

Case No. 3:17-cv-00288-MMD-VPC

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Petitioner,

ORDER

v.
STATE OF NEVADA, 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 petition 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 therefore is ordered that this action is dismissed without prejudice to the filing of
a new petition in a new action.

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It is further ordered that the Clerk of the Court send petitioner two (2) copies of an

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in forma pauperis application form for a prisoner and one copy of the instructions for the

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same, two (2) copies of a blank 28 U.S.C. § 2254 habeas petition form and one (1) copy

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of instructions for the same; and one (1) copy of the petition.

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It is further ordered that petitioner may file a new petition in a new action, but 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 12th day of May 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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