-VPC Penny v. Warden, No. 3:2012cv00420 - Document 4 (D. Nev. 2012)

Court Description: ORDER. IT IS ORDERED that the petition is DIMISSED without prejudice to the filing a new petition in a new action under a new docket number with either payment of the filing fee or a properly completed pauper application. The Clerk shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Chief Judge Robert C. Jones on 9/6/2012. (Copies have been distributed pursuant to the NEF - HJ)

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-VPC Penny v. Warden Doc. 4 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 WIL P. PENNY, 8 Petitioner, 3:12-cv-00420-RCJ-VPC 9 ORDER vs. 10 11 STATE OF NEVADA, 12 Respondent. 13 This habeas action comes before the Court for initial review. The filing fee has been 14 15 paid. 16 Turning to initial review, petitioner must file a petition on the Court’s required § 2254 17 petition form. The present petition is entirely handwritten, and petitioner invokes 28 U.S.C. 18 § 2241. The determination of whether a petitioner must proceed under 28 U.S.C. § 2254 19 rather than 28 U.S.C. § 2241 is a status inquiry directed to the source of the petitioner’s 20 custody. See,e.g., Shelby v. Bartlett, 391 F.3d 1061, 1063-64 (9th Cir. 2004). Petitioner is in 21 custody pursuant to a Nevada state conviction. He therefore must proceed under § 2254, and 22 he accordingly must use the Court’s required § 2254 form as required by Local Rule LSR 3-1. 23 It does not appear that a dismissal without prejudice of this improperly-commenced 24 action will result in a promptly-filed new petition being untimely.1 25 26 27 28 1 The online docket records of the state district court and state suprem e court reflect the following. Petitioner’s conviction was affirm ed on direct appeal on or about July 19, 2010, in No. 55400. The tim e for filing a petition for a writ of certiorari in the United States Suprem e Court expired on Monday, October 18, 2010. Petitioner filed a state post-conviction petition on or about February 1, 2011, as to which counsel was appointed. The state district court denied the petition on July 10, 2012. Petitioner at all tim e rem ains Dockets.Justia.com 1 IT THEREFORE IS ORDERED that the petition is DISMISSED without prejudice to the 2 filing of a new petition in a new action under a new docket number with either payment of the 3 filing fee or a properly completed pauper application.2 4 5 The Clerk shall enter final judgment accordingly, dismissing this action without prejudice. DATED: September 6, 2012. 6 7 8 __________________________________ ROBERT C. JONES Chief United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 responsible for calculating the running of the one-year federal lim itation period and tim ely presenting exhausted claim s. 2 The Court expresses no opinion as to whether the petition or claim s therein are subject to other deficiencies. Petitioner m ay not proceed against the State of Nevada in federal court, regardless of the relief sought, due to the state sovereign im m unity recognized under the Eleventh Am endm ent. -2-

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