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Sanchez v. State

United States District Court, D. Nevada

April 3, 2014

FORTINO SANCHEZ, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

ORDER

ROBERT C. JONES, District Judge.

This closed action by a Nevada state inmate comes before the Court on petitioner's motion (#13) for reconsideration as well as on his motion (#11) to compel and motion (#14) for a copy of the docket sheet. The motion for reconsideration was filed within the time period for seeking relief under Rule 59.

Background

The papers on file along with the online dockets of the state courts reflect the following.

Petitioner Fortino Sanchez was convicted in Nevada state court, pursuant to a jury verdict, of three counts of lewdness with a child under the age of fourteen and one count of sexual assault of a minor under the age of fourteen.

The judgment of conviction in No. C268118 in the state district court was filed on March 6, 2012. Sanchez filed a direct appeal through counsel under No. 60582 in the state supreme court. Briefing was completed in the state supreme court on October 11, 2013, and the matter is under review in that court.

During the pendency of the direct appeal, the still-represented petitioner filed numerous proper person papers in the state district court, including a February 12, 2013, state post-conviction petition. The state district court took the petition off the calendar due to the pending direct appeal. Petitioner filed a proper person appeal from that action by the state district court, under No. 63527. The state supreme court dismissed the appeal in No. 63527 for lack of jurisdiction on September 9, 2013. The court thereafter denied a petition for rehearing on November 13, 2013, and the remittitur issued on December 10, 2013.

Meanwhile, during the pendency of the foregoing state court proceedings, including the direct appeal proceedings, petitioner commenced this federal action.

On August 2, 2013, the Clerk received a one-page handwritten and unsigned document. The page had a caption of "Fortino Sanchez v. the State of Nevada" and a citation to 28 U.S.C. § 2254(b)(1)(c). The paper stated that the representation by the state public defender's office fell below professional norms because counsel failed to file a motion for a speedy trial.

Petitioner neither paid the filing fee nor submitted a pauper application with the foregoing paper. The paper further was not presented on either the habeas petition form or the civil rights complaint form required by the Court's local rules.

On August 5, 2013, the Clerk received a paper by petitioner forwarded from the Court of Appeals. The paper included the first page and the signature page from the Court's § 2254 form, but there was no statement of claims between the pages. Petitioner instead had inserted copies of apparent state court record exhibits between the pages.

Petitioner thereafter filed a number of motions and other papers, including motions seeking a stay of the federal action pending completion of the state proceedings and ordering state counsel to provide documents to petitioner.

On September 17, 2013, the Court entered final judgment dismissing the improperly commenced action without prejudice. The Court noted that the action had not been properly commenced because neither a filing fee nor filing fee had been submitted with the action, and petitioner had used the first and last pages of the required petition form essentially as a cover document for other papers rather than to state claims.

Prior to dismissing the action without prejudice to a properly commenced new action under a new docket ...


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