Young v. Williams et al, No. 2:2013cv01739 - Document 3 (D. Nev. 2014)

Court Description: ORDER Granting Petitioner's 1 Motion/Application for Leave to Proceed in forma pauperis for this action only. Petitioner will not be required to pay the filing fee. The clerk of court shall file the petition and the petition is DISMISSED without prejudice as duplicative of the first-filed action in No. 2:12-cv-00524-JCM-NJK. Petitioner's 2 Motion to Appoint Counsel is Denied. The clerk shall enter final judgment dismissing the action without prejudice. Signed by Judge James C. Mahan on 5/27/2014. (Copies have been distributed pursuant to the NEF - SLD)
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Young v. Williams et al Doc. 3 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 DANNY ANDREW YOUNG, 8 2:13-cv-01739-JCM-PAL Petitioner, 9 ORDER vs. 10 11 BRIAN WILLIAMS, et al., 12 Respondents. 13 14 This habeas matter under 28 U.S.C. § 2254 comes before the court on petitioner’s 15 application (#1) to proceed in forma pauperis, his motion (#2) for appointment of counsel, and 16 for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The court finds 17 that petitioner is unable to pay the filing fee, and the pauper application therefore will be 18 granted. Following review, it appears that the petition should be dismissed without prejudice 19 in deference to petitioner’s first-filed petition challenging the same conviction. 20 The papers on file and the online docket records of this court and the state courts 21 reflect the following. See, e.g., Harris v. County of Orange, 682 F.3d 1126, 1132-32 (9th Cir. 22 2012)(a federal court may take judicial notice of matters of public record, including documents 23 on file in federal or state courts). 24 Petitioner Danny Andrew Young was convicted, pursuant to a jury verdict, of incest, 25 attempted sexual assault, and two counts of sexual assault. The state supreme court 26 affirmed the conviction on May 10, 2010, in No. 54017. The ninety-day time period for filing 27 a petition for a writ of certiorari in the United States Supreme Court expired on Monday, 28 August 9, 2010. 1 After approximately five months had elapsed, on or about January 12, 2011, petitioner 2 filed a state post-conviction petition. The state district court denied relief. In No. 58352, the 3 state supreme court affirmed the denial of relief but remanded for the correction of a clerical 4 error in the judgment of conviction. The remittitur issued on December 13, 2011. 5 6 An amended judgment of conviction was filed on December 22, 2011, and the time to file a direct appeal from the corrected judgment expired on Monday, January 23, 2012. 7 On or about March 20, 2012, petitioner mailed a federal habeas petition to the clerk 8 of this court for filing, which was docketed under No. 2:12-cv-00524-JCM-NJK. That action 9 ultimately was dismissed without prejudice after petitioner did not either pay the $5.00 filing 10 fee or file a properly-completed pauper application that would demonstrate his inability to do 11 so. Final judgment was entered on March 1, 2003. 12 On or about September 16, 2013, petitioner mailed the present petition for filing.1 13 On March 25, 2014, subsequent to the filing of this action, the court granted petitioner’s 14 motion to reopen the first-filed action in No. 2:12-cv-00524. 15 This duplicative action therefore will be dismissed without prejudice in deference to the 16 first-filed action. Even if there arguendo were claims asserted in the petition in this matter that 17 are not asserted in the petition in the first action, any such arguendo additional claims will be 18 timely in the other action – if actually added in that action – only if they relate back to the 19 petition in the first action. The petition in the present matter is untimely on its face, and the 20 pendency of this action thus will not aid petitioner in establishing the timeliness of any claims 21 in the present petition that are not currently included in the petition in the first-filed action. It 22 does not appear from a review of the petition in this matter that petitioner successfully could 23 rely on delayed accrual under 28 U.S.C. § 2244(d)(1)(B) through (D) to establish the 24 timeliness of any particular claim herein that arguendo is not included in the first petition. 25 26 27 28 1 Petitioner constructively filed another action in No. 2:13-cv-00952-APG-GWF on or about May 23, 2013. The court dismissed that action without prejudice due to multiple procedural defects. The court noted that the dismissal without prejudice would not materially impact an analysis of, inter alia, the timeliness issue in a new action given that petitioner needed much more than relation back to the putative May 23, 2013, filing date of that action to establish the timeliness of his claims. -2- 1 The court expresses no opinion as to whether the petition in this matter includes claims 2 that are not presented in the first-filed petition.2 Nor is the court instructing or giving petitioner 3 permission to file additional claims in the first-filed action. The court is stating only that the 4 dismissal of this duplicative action without prejudice will not materially impact the analysis of 5 the timeliness of any claims that petitioner might seek to add in the first-filed action that 6 arguendo are included only in the present petition. 7 The court finds that further proceedings herein prior to dismissal of this duplicative 8 later-filed action without prejudice would be futile and an imprudent application of limited 9 resources. 10 11 The motion for appointment of counsel will be denied without prejudice in this duplicative action. 12 Petitioner should note the following. Petitioner falsely indicated in the petition for this 13 action that this petition was his first federal petition challenging the conviction. See #1-1, at 14 2. If petitioner again makes a false statement to the court, in this or another action, the matter 15 may be referred to institutional authorities for consideration of possible disciplinary sanctions 16 for major violation MJ48.3 17 IT THEREFORE IS ORDERED that petitioner’s application (#1) to proceed in forma 18 pauperis is GRANTED, for this action only, and that petitioner will not be required to pay the 19 filing fee for this action. 20 IT FURTHER IS ORDERED that the clerk of court shall file the petition and that the 21 petition is DISMISSED without prejudice as duplicative of the first-filed action in No. 22 2:12-cv-00524-JCM-NJK. 23 24 25 26 27 28 2 The petitions do substantially overlap and both clearly challenge the same conviction, with the claims in the present petition being more conclusory than the attachment submitted with the first-filed petition. 3 Under MJ48 of the NDOC Administrative Regulations, a major violation may be committed by the following: “Any violation of the Rules of Court, contempt of court, submission of forged or otherwise false documents, submissions of false statements, violations of Rules of Civil Procedure and/or receiving sanctions and/or warnings for any such actions from any court. Although not necessary for disciplinary purposes, any Order from any court detailing such action shall be sufficient evidence for disciplinary purposes.” -3- 1 2 3 4 5 IT FURTHER IS ORDERED that petitioner’s motion (#2) for appointment of counsel is DENIED without prejudice. The clerk shall enter final judgment according, dismissing the present action without prejudice. DATED: May 27, 2014. 6 7 8 9 ___________________________________ JAMES C. MAHAN United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-