1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 James Theodore Sharkey, Case No.: 2:20-cv-00088-APG-EJY

4 Petitioner, Order Dismissing Action

5 v.

6 James Dzurenda, et al.,

7 Respondents.

8 Petitioner James Sharkey has submitted a petition for a writ of habeas corpus. I dismiss 9 this action because Sharkey did not pay the filing fee, nor did he submit an application to 10 proceed in forma pauperis with a financial certificate and a copy of his inmate account 11 statement, as required by

(a)(2) and Local Rule LSR 1-2. 12 A preliminary review of the petition shows that the dismissal would not affect the 13 timeliness of any subsequently commenced action. The state district court entered a judgment of 14 conviction on March 20, 2018. State v. Sharkey, Case No. C-17-321917-1.1 The Nevada Court 15 of Appeals decided the appeal from that judgment on March 18, 2019.2 Sharkey v. State, Case 16 No. 75474 & 75474-COA.3 Sharkey filed a post-conviction habeas corpus petition in the state 17

18 1 https://www.clarkcountycourts.us/Anonymous/CaseDetail.aspx?CaseID=11759386. All docket reports were generated on January 15, 2020. 19 2 Sharkey alleges that the decision occurred on April 12, 2019. ECF No. 1-1, at 1. The Nevada Supreme Court issued the remittitur on that date. While issuance of the remittitur is significant 20 for the state one-year period of limitation of

(1), it is not important for determining the finality of a judgment of conviction under the federal one-year period of 21 limitation of

(d)(1)(A). In this case, the expiration of the time to petition the Supreme Court of the United States for a writ of certiorari governs the finality of the judgment. 22 Jimenez v. Quarterman,

(2009). That time expired after Sharkey filed his state post-conviction petition. Consequently, the one-year period was tolled under 28 U.S.C. 23 § 2244(d)(2) even before it started. 3 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=45712&combined=true. 1 district court on April 26, 2019. Sharkey v. Dzurenda, Case No. A-19-793757-W.4 The state 2 district court denied the petition. Sharkey appealed the denial. That appeal still is pending in the 3 Nevada Supreme Court. Sharkey v. Director, Case No. 79294, consolidated with Case 4 No. 80001.5 Under the terms of

(d)(1) and (2), no time has run on the federal 5 one-year period of limitation.

6 Reasonable jurists would not find this conclusion to be debatable or wrong, and I will not 7 issue a certificate of appealability. 8 I THEREFORE ORDER the clerk of the court to file the petition for a writ of habeas 9 corpus. 10 I FURTHER ORDER the clerk of the court to send Sharkey a blank form for an 11 application to proceed in forma pauperis for incarcerated litigants. 12 I FURTHER ORDER that this action is DISMISSED without prejudice to Sharkey’s 13 commencement of a new action in which he either pays the filing fee in full or submits a 14 complete application to proceed in forma pauperis, accompanied by a signed financial certificate

15 and a statement of his inmate account. 16 I FURTHER ORDER that a certificate of appealability will not issue. 17 I FURTHER ORDER that that the clerk shall add Aaron Ford, Attorney General for the 18 State of Nevada, as counsel for respondents. 19 I FURTHER ORDER the clerk to electronically serve upon the respondents a copy of this 20 order and the petition. No response is necessary. 21 / / / / 22

23 4 https://www.clarkcountycourts.us/Anonymous/CaseDetail.aspx?CaseID=11952671. 5 http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=56123. 1 I FURTHER the clerk of the court to enter judgment accordingly and close this action. 2 DATED this 16th day of January, 2020.

Ge 4 ANDREW P. GORDON 5 UNITED STATES DISTRICT JUDGE

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