Sanchez v. State of Nevada et al, No. 3:2013cv00415 - Document 9 (D. Nev. 2013)

Court Description: ORDERED that this action shall be DISMISSED without prejudice to the filing of a new petition in a new action with a properly completed pauper application with all new and complete financial attachments. FURTHER ORD that all pending motions are DENIED without prejudice. FURTHER ORD that a certificate of appealability is DENIED. Clerk shall send petitioner 2 copies each of an application form to proceed in forma pauperis for incarcerated persons and a noncapital Section 2254 ha beas petition form, 1 copy of the instructions for each form, and a copy of the papers that he submitted. ( Forms and docs mailed to P 9/17/2013. ) Clerk shall enter final judgment accordingly, dismissing this action without prejudice. Signed by Chief Judge Robert C. Jones on 9/16/2013. (Copies have been distributed pursuant to the NEF - DRM) Modified on 9/17/2013 for font (DRM).
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Sanchez v. State of Nevada et al Doc. 9 1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 FORTINO SANCHEZ, Petitioner, 9 10 vs. 11 STATE OF NEVADA, 12 Respondent. ) ) ) ) ) ) ) ) ) 3:13-cv-00415-RCJ-VPC ORDER 13 This action was transferred to this Court by the Ninth Circuit Court of Appeals. ECF No. 1. 14 Petitioner Fortino Sanchez has submitted a document entitled petition for a writ of habeas corpus. He 15 has not paid the filing fee nor filed an application to proceed in forma pauperis. 16 When the filing fee is not prepaid, under 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2, 17 petitioner must apply for leave to proceed in forma pauperis. The petitioner must attach both an inmate 18 account statement for the past six months and a properly executed financial certificate. Petitioner has 19 not submitted any fee or documentation. Without the complete printout showing daily account activity 20 over the full six-month period, the Court is unable to assess whether the current balance on the financial 21 certificate is representative of petitioner's ability to pay. The Court is unable to see, inter alia, the 22 regularity and amount of any incoming funds as well as the extent to which petitioner is making 23 discretionary expenditures that instead could be applied to payment of the filing fee. 24 Petitioner further did not use the Court’s required habeas petition form to state his claims. Under 25 Local Rule LSR 3-1, a petitioner must file the petition on the Court’s required Section 2254 petition 26 form. In the present case, petitioner in essence used the petition form as a cover document for a several Dockets.Justia.com 1 page motion for new counsel in his on-going state court proceedings. It appears from the state of these 2 documents that petitioner is confused about the process and purpose of a federal habeas action. 3 Due to the multiple defects presented, the pauper application will be denied, and the present 4 action will be dismissed without prejudice to the filing of a new petition in a new action with a pauper 5 application with all required attachments. It does not appear from the papers presented that a dismissal 6 without prejudice would result in a promptly-filed new petition being untimely. In this regard, petitioner 7 at all times remains responsible for calculating the running of the federal limitation period as applied 8 to his case, properly commencing a timely-filed federal habeas action, and properly exhausting his 9 claims in the state courts. 10 IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice to 11 the filing of a new petition in a new action with a properly completed pauper application with all new 12 – and complete – financial attachments. 13 IT FURTHER IS ORDERED that all pending motions are DENIED without prejudice. 14 IT FURTHER IS ORDERED that a certificate of appealability is DENIED. Reasonable jurists 15 would not find the dismissal of the improperly-commenced action without prejudice to be debatable or 16 wrong. 17 The Clerk shall send petitioner two copies each of an application form to proceed in forma 18 pauperis for incarcerated persons and a noncapital Section 2254 habeas petition form, one copy of the 19 instructions for each form, and a copy of the papers that he submitted. 20 The Clerk shall enter final judgment accordingly, dismissing this action without prejudice. 21 DATED: This 16th day of September, 2013. 22 ______________________________ UNITED STATES DISTRICT JUDGE 23 24 25 26 2