Garcia v. State of Nevada

Filing 3

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)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 EVARISTO JONATHAN GARCIA, 10 11 12 Case No. 3:17-cv-00378-MMD-WGC Petitioner, ORDER v. STATE OF NEVADA, et al., Respondents. 13 14 This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 15 U.S.C. § 2254 by a Nevada state prisoner. Neither a filing fee nor an application to 16 proceed in forma pauperis was submitted with the petition. When filing a habeas action, 17 petitioner must either submit the $5.00 filing fee for habeas petition or an application to 18 proceed in forma pauperis. Due to the lack of an in forma pauperis application or filing 19 fee, the present action will be dismissed without prejudice to the filing of a new petition in 20 a new action with a pauper application with all required attachments. It does not appear 21 from the papers presented that a dismissal without prejudice would result in a promptly 22 filed new petition being untimely. In this regard, petitioner at all times remains responsible 23 for calculating the running of the limitations period as applied to his case and properly 24 commencing a timely filed habeas corpus action. 25 therefore is ordered that this action is dismissed without prejudice to the filing of a new 26 petition in a new action. It 27 It is further ordered that the Clerk of the Court send petitioner the following: two (2) 28 copies of an in forma pauperis application form for a prisoner and one (1) copy of the 1 instructions for the same, two (2) copies of a blank 28 U.S.C. § 2254 habeas petition form 2 and one (1) copy of instructions for the same; and a copy of the petition (labeled “notice 3 of appeal” at ECF No. 1-1). 4 5 It is further ordered that petitioner may file a new petition in a new action, but may not file further documents in this action. 6 It is further ordered that a certificate of appealability is denied. Reasonable jurists 7 would not find the dismissal of the improperly commenced action without prejudice to be 8 debatable or wrong. 9 It is further ordered that the Clerk of the Court enter judgment accordingly. 10 11 DATED THIS 19th day of June 2017. 12 13 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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