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Durand v. Clark County District Courts

United States District Court, D. Nevada

December 18, 2019

ROBERTO DURAND, Petitioner,
v.
CLARK COUNTY DITRICT COURTS, Respondent.

          ORDER

          MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner Roberto Durand, a Nevada state inmate, has submitted a pauper application without a habeas petition or other pleading. (ECF No. 1.)

         Review of the Court's records reflects the following.

         In No. 3:18-cv-00343-RCJ-VPC, Durand filed a habeas petition without either a pauper application or payment of the filing fee, naming only the State of Nevada and the state attorney general as respondents. The Court dismissed the improperly commenced action without prejudice.

         Shortly thereafter, a pauper application by Durand was docketed in No. 3: 18-cv-00372-HDM-WGC, without any accompanying pleading. The Court dismissed the action without prejudice. In the dismissal order, the Court summarized Durand's prior state court writ history. That history reflects that, absent other tolling or delayed accrual, the federal one-year limitation period would have putatively expired on or about December 12, 2013. The Court therefore expressly concluded that a dismissal without prejudice of the improperly commenced action would not materially impact application of the limitation period or otherwise cause substantial prejudice. The dismissal order further informed Durand “that he must submit a pauper application or pay the filing fee at the same time he files a petition, or the action may be considered improperly commenced.” (No. 3: 18- cv-00372-HDM-WGC, ECF No. 3 at 2.)

         In the current action, filed more than a year after the two prior dismissals, Durand again submits a pauper application without an accompanying pleading. He attaches a copy of the dismissal order from No. 3:18-cv-00372. He states in a cover letter:

Heres all Documents needed for my conviction (C-11-273021-1) stating here that I only need application so this is the 3 case and I do not have attorneys for anyone of the civil suits or now this (writ habeas corpus) as a civil suit also so please inform Hon. Judge I need attorneys to go over - case I'm sure I sent all Documents Please tell me if you see anything missing here I send original filed case so you know what they did Do send me this Document. 3. Back to me why so long the wait for my Attorneys to be appointed as petitioner can talk to Hon. Judge? Sure I sent all Documents - to be filed before. . . . .

(ECF No. 1-1.)

         This action has been improperly commenced and therefore will be dismissed without prejudice. Following upon its review of Durand's prior state court writ history as summarized in No. 3:18-cv-00372, the Court finds that a dismissal without prejudice of this improperly commenced action would not materially impact an analysis of the application of the federal limitation period or otherwise cause substantial prejudice.

         Durand should note the following.

         First, all three of Durand's improperly commenced habeas actions, including now this one, have been dismissed.

         Second, there has been no habeas action pending before this Court after the two prior actions were dismissed more than a year ago.

         Third, after a federal case is dismissed, the papers in that case are not considered to be part of later cases that Durand files.

         Fourth, in order to seek federal habeas relief, Durand must either pay the $5.00 filing fee or file a properly completed pauper application while-at the same time-he files a habeas ...


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