Garcia v. State of Nevada
ORDER dismissing without prejudice this action; directing Clerk to send Petitioner forms and instructions (mailed 6/19/2017); 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 6/19/2017. (Copies have been distributed pursuant to the NEF - KR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
EVARISTO JONATHAN GARCIA,
Case No. 3:17-cv-00378-MMD-WGC
STATE OF NEVADA, et al.,
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254 by a Nevada state prisoner. Neither a filing fee nor an application to
proceed in forma pauperis was submitted with the petition. When filing a habeas action,
petitioner must either submit the $5.00 filing fee for habeas petition or an application to
proceed in forma pauperis. Due to the lack of an in forma pauperis application or filing
fee, the present action will be dismissed without prejudice to the filing of a new petition in
a new action with a pauper application with all required attachments. It does not appear
from the papers presented that a dismissal without prejudice would result in a promptly
filed new petition being untimely. In this regard, petitioner at all times remains responsible
for calculating the running of the limitations period as applied to his case and properly
commencing a timely filed habeas corpus action.
therefore is ordered that this action is dismissed without prejudice to the filing of a new
petition in a new action.
It is further ordered that the Clerk of the Court send petitioner the following: two (2)
copies of an in forma pauperis application form for a prisoner and one (1) copy of the
instructions for the same, two (2) copies of a blank 28 U.S.C. § 2254 habeas petition form
and one (1) copy of instructions for the same; and a copy of the petition (labeled “notice
of appeal” at ECF No. 1-1).
It is further ordered that petitioner may file a new petition in a new action, but may
not file further documents in this action.
It is further ordered that a certificate of appealability is denied. Reasonable jurists
would not find the dismissal of the improperly commenced action without prejudice to be
debatable or wrong.
It is further ordered that the Clerk of the Court enter judgment accordingly.
DATED THIS 19th day of June 2017.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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