United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
This habeas matter under 28 U.S.C. § 2254 comes before the court on petitioner's application (#1) to proceed in forma pauperis, his motion (#2) for appointment of counsel, and for initial review under Rule 4 of the Rules Governing Section 2254 Cases. The court finds that petitioner is unable to pay the filing fee, and the pauper application therefore will be granted. Following review, it appears that the petition should be dismissed without prejudice in deference to petitioner's first-filed petition challenging the same conviction.
The papers on file and the online docket records of this court and the state courts reflect the following. See, e.g., Harris v. County of Orange, 682 F.3d 1126, 1132-32 (9th Cir. 2012)(a federal court may take judicial notice of matters of public record, including documents on file in federal or state courts).
Petitioner Danny Andrew Young was convicted, pursuant to a jury verdict, of incest, attempted sexual assault, and two counts of sexual assault. The state supreme court affirmed the conviction on May 10, 2010, in No. 54017. The ninety-day time period for filing a petition for a writ of certiorari in the United States Supreme Court expired on Monday, August 9, 2010.
After approximately five months had elapsed, on or about January 12, 2011, petitioner filed a state post-conviction petition. The state district court denied relief. In No. 58352, the state supreme court affirmed the denial of relief but remanded for the correction of a clerical error in the judgment of conviction. The remittitur issued on December 13, 2011.
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.
On or about March 20, 2012, petitioner mailed a federal habeas petition to the clerk of this court for filing, which was docketed under No. 2:12-cv-00524-JCM-NJK. That action ultimately was dismissed without prejudice after petitioner did not either pay the $5.00 filing fee or file a properly-completed pauper application that would demonstrate his inability to do so. Final judgment was entered on March 1, 2003.
On or about September 16, 2013, petitioner mailed the present petition for filing.
On March 25, 2014, subsequent to the filing of this action, the court granted petitioner's motion to reopen the first-filed action in No. 2:12-cv-00524.
This duplicative action therefore will be dismissed without prejudice in deference to the first-filed action. Even if there arguendo were claims asserted in the petition in this matter that are not asserted in the petition in the first action, any such arguendo additional claims will be timely in the other action - if actually added in that action - only if they relate back to the petition in the first action. The petition in the present matter is untimely on its face, and the pendency of this action thus will not aid petitioner in establishing the timeliness of any claims in the present petition that are not currently included in the petition in the first-filed action. It does not appear from a review of the petition in this matter that petitioner successfully could rely on delayed accrual under 28 U.S.C. § 2244(d)(1)(B) through (D) to establish the timeliness of any particular claim herein that arguendo is not included in the first petition.
The court expresses no opinion as to whether the petition in this matter includes claims that are not presented in the first-filed petition. Nor is the court instructing or giving petitioner permission to file additional claims in the first-filed action. The court is stating only that the dismissal of this duplicative action without prejudice will not materially impact the analysis of the timeliness of any claims that petitioner might seek to add in the first-filed action that arguendo are included only in the present petition.
The court finds that further proceedings herein prior to dismissal of this duplicative later-filed action without prejudice would be futile and an imprudent application of limited resources.
The motion for appointment of counsel will be denied without prejudice in this duplicative action.
Petitioner should note the following. Petitioner falsely indicated in the petition for this action that this petition was his first federal petition challenging the conviction. See #1-1, at 2. If petitioner again makes a false statement to the court, in this or another action, the matter may be referred to institutional ...