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James v. Williams, 2:18-cv-00338-JCM-VCF. (2018)

Court: District Court, D. Nevada Number: infdco20180301o32 Visitors: 12
Filed: Feb. 28, 2018
Latest Update: Feb. 28, 2018
Summary: ORDER JAMES C. MAHAN , District Judge . Petitioner has filed a habeas petition under 28 U.S.C. 2254 without properly commencing the action by paying the filing fee or filing a complete pauper application. Specifically, although petitioner submitted an application to proceed in forma pauperis, he did not submit the required financial certificate. LSR 1-2. It does not appear that a dismissal without prejudice would cause petitioner substantial prejudice. 1 This improperly commenced acti
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ORDER

Petitioner has filed a habeas petition under 28 U.S.C. § 2254 without properly commencing the action by paying the filing fee or filing a complete pauper application. Specifically, although petitioner submitted an application to proceed in forma pauperis, he did not submit the required financial certificate. LSR 1-2.

It does not appear that a dismissal without prejudice would cause petitioner substantial prejudice.1 This improperly commenced action therefore will be dismissed without prejudice.

It therefore is ordered that this action shall be dismissed without prejudice.

It further is ordered that a certificate of appealability is denied. Jurists of reason would not find debatable whether the court was correct in its dismissal of the action without prejudice on procedural grounds, for the reasons discussed herein.

It further is ordered, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, that the clerk shall make informal electronic service upon respondents by adding Nevada Attorney General Adam P. Laxalt as counsel for respondents and directing a notice of electronic filing of this order to his office. No response is required from respondents other than to respond to any orders of a reviewing court.

The clerk of court shall send petitioner a copy of his papers in this action, along with copies of the forms and instructions for an inmate pauper application and habeas petition.

The clerk of court shall enter final judgment accordingly, dismissing this action without prejudice.

FootNotes


1. The conviction petitioner challenges arises out of Case No. 10C265506 in Eighth Judicial District Court. Based on the petition and the state court's docket, it appears that the conviction became final on or about January 28, 2013, when the time for filing a certiorari petition to the United State Supreme Court expired. Petitioner filed a state postconviction petition on March 14, 2013. Proceedings on the first petition remained pending through issuance of the remittitur on December 29, 2017. Therefore, as it appears that several months still remain in the federal limitations period, petitioner will not be prejudiced by dismissal of this action so long as he promptly files a new federal action with either the complete pauper application or payment of the filing fee.
Source:  Leagle

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