People Of The State Of Nevada v. Ford, No. 2:2012cv01854 - Document 4 (D. Nev. 2012)

Court Description: ORDER that the petition shall be DISMISSED without prejudice. A certificate of appealability is DENIED. The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Judge Miranda M. Du on 11/15/2012. (Copies have been distributed pursuant to the NEF - SLR)

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People Of The State Of Nevada v. Ford Doc. 4 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 PEOPLE OF THE STATE OF NEVADA, 10 Named Petitioner, 11 12 Case No. 2:12-cv-01854-MMD-CWH ORDER v. RUDY FORD a/k/a RUDY ALLEN, 13 Named Respondent. 14 This habeas matter filed by a detainee or inmate then being held in a local jail in 15 16 Boulder, Colorado comes before the Court for initial review. 17 The papers presented are subject to multiple substantial defects. 18 First, petitioner Rudy Ford1 did not either pay the $5.00 filing fee or submit an 19 application to proceed in forma pauperis. He must do one or the other to properly 20 commence an action in federal court. 21 Second, petitioner failed to use the required habeas petition form as required by 22 Local Rule LSR 3-1. Petitioner instead used a state court form for an application for a 23 writ of habeas corpus ad prosequendum. Over and above the fact that the petition is 24 not filed on this Court=s required form, such a writ has nothing to do with a habeas 25 petition challenging a petitioner=s custody. A writ of habeas corpus ad prosequendum 26 instead directs that a defendant be transported in order to be prosecuted, not released. 27 1 28 While Ford designates himself as defendant, he is a petitioner in seeking habeas relief. Dockets.Justia.com 1 Third, petitioner failed to name an appropriate respondent. Petitioner cannot sue 2 the State of Nevada, or the State designated as the People of the State of Nevada, in 3 federal court, even on a petition for habeas relief. 4 recognized by the Eleventh Amendment bars all actions against a State in federal court, 5 regardless of the relief sought. See,e.g., Pennhurst State School & Hospital v. 6 Halderman, 465 U.S. 89, 101 (1984). 7 The state sovereign immunity Due to these multiple substantial defects, the petition in this improperly- 8 commenced action will be dismissed without prejudice. 9 dismissal without prejudice would materially affect the analysis of either the timeliness 10 of a promptly-filed new petition or other issues therein. The online docket of the state 11 district court reflects that the Nevada state judgment of conviction referenced in the 12 current petition was entered on April 23, 2004. 13 proceeding, or proceeding for other collateral review was initiated within one year of the 14 expiration of the time for filing a direct appeal. A dismissal without prejudice thus will 15 not materially affect the analysis of timeliness or other issues regarding a challenge 16 either to the original judgment of conviction and/or to any more recent proceedings in 17 connection with efforts to extradite Ford to Nevada. 18 19 It does not appear that a No appeal, state post-conviction IT THEREFORE IS ORDERED that the petition shall be DISMISSED without prejudice. 20 IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as 21 jurists of reason would not find the dismissal of this improperly-commenced action to be 22 either debatable or incorrect, given the absence of any substantial prejudice to 23 petitioner from the dismissal without prejudice. 24 25 26 The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. DATED THIS 15th day of November 2012. 27 28 MIRANDA M. DU UNITED STATES DISTRICT JUDGE

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