-VPC Miller v. Baker et al, No. 3:2011cv00521 - Document 3 (D. Nev. 2011)

Court Description: ORDER. IT IS HEREBY ORDERED that the 1 application to proceed in forma pauperis is DENIED and that this action shall be DISMISSED without prejudice to the filing of a new petition in a new action with a new pauper application with all requ ired attachments. FURTHER ORDERED, a certificate of appealability is DENIED as to the dismissal without prejudice. FURTHER ORDERED, the Clerk shall send petitioner two copies each of a noncapital habeas petition form and an application form to proce ed in forma pauperis for incarcerated persons, one copy of the instructions for each form, and a copy of the papers that he submitted in this action. (Sent: 7/27/2011.) The Clerk shall enter final judgment accordingly, dismissing this action without prejudice. (Copies have been distributed pursuant to the NEF - KO)

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-VPC Miller v. Baker et al Doc. 3 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 ANDY MILLER, 9 Petitioner, 3:11-cv-00521-ECR-VPC 10 vs. 11 ORDER 12 13 RENEE BAKER, et al., Respondents. 14 15 16 Petitioner has submitted an application (#1) to proceed in forma pauperis and a habeas petition. 17 The matter has not been properly commenced because the pauper application does 18 not include all required attachments. Under 28 U.S.C. § 1915(a)(2) and Local Rule LSR1-2, 19 the petitioner must attach both an inmate account statement for the past six months and a 20 properly executed financial certificate. Petitioner did not submit an inmate account statement 21 for the past six months. Both an executed financial certificate and an inmate account 22 statement are required. 23 The application therefore will be denied, and the present action will be dismissed 24 without prejudice to the filing of a new petition in a new action with a pauper application on 25 the proper form with all required attachments. It does not appear from the papers presented 26 that a dismissal without prejudice would result in a promptly filed new petition being untimely.1 27 28 1 The papers on file reflect the following. Petitioner’s conviction was affirm ed on direct appeal on (continued...) Dockets.Justia.com 1 IT THEREFORE IS ORDERED that the application (#1) to proceed in forma pauperis 2 is DENIED and that this action shall be DISMISSED without prejudice to the filing of a new 3 petition in a new action with a new pauper application with all required attachments. 4 5 IT FURTHER IS ORDERED that a certificate of appealability is DENIED as to the dismissal without prejudice. 6 IT FURTHER IS ORDERED that the Clerk of Court shall send petitioner two copies 7 each of a noncapital habeas petition form and an application form to proceed in forma 8 pauperis for incarcerated persons, one copy of the instructions for each form, and a copy of 9 the papers that he submitted in this action. 10 11 The Clerk shall enter final judgment accordingly, dismissing this action without prejudice. DATED: July 27, 2011. 12 13 _________________________________ EDWARD C. REED United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 (...continued) January 8, 2010, and the tim e for seeking certiorari would have expired ninety days later, on or about April 8, 2010. Petitioner filed a state post-conviction petition on March 25, 2010, prior to the expiration of the period for seeking certiorari. The Suprem e Court of Nevada affirm ed the denial of state post-conviction relief on May 10, 2011, and the rem ittitur would have issued thereafter on or about June 6, 2011. It thus appears that little tim e has elapsed in the federal one-year lim itation period under 28 U.S.C. § 2244(d). Petitioner at all tim es rem ains responsible for calculating the running of the federal lim itation period as applied to his case and properly com m encing a tim ely-filed federal habeas action. -2-

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