Gomez v. Neven et al

Filing 2

ORDER DISMISSING CASE without Prejudice. Clerk of Court shall enter final judgment accordingly. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Kent J. Dawson on 10/25/10. (Copies have been distributed pursuant to the NEF - ASB)

Gomez v. Neven et al

Doc. 2

1 2 3 4 5 6 7 8 BYRON LEONEL GOMEZ, 9 Petitioner, 10 vs. 11 ORDER 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review under Rule 4 of the Rules Governing Section 2254 Cases. Petitioner's papers are subject to multiple defects. First, petitioner did not either pay the filing fee or submit an application to proceed in forma pauperis. Petitioner first must satisfy the filing fee requirement or obtain leave to proceed in forma pauperis in order to commence a habeas action in federal court. Second, petitioner did not sign the petition. It appears that he signed, or at least printed his name under, the declaration under penalty of perjury, but he did not sign the petition itself. He must do both. Third, from the procedural history given, it does not appear that petitioner has exhausted his state judicial remedies in the Nevada state courts. See #1, at 1, responses to queries 3 and 4. Under 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner first must exhaust his state court remedies on a claim before presenting that claim to the federal courts. To satisfy this exhaustion requirement, the claim must have been fairly presented to the state courts DWIGHT NEVEN, et al. Respondents. 2:10-cv-01823-KJD-PAL

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dockets.Justia.com

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completely through to the highest court available, in this case the Supreme Court of Nevada. E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). The exhaustion requirement insures that the state courts, as a matter of federal-state comity, will have the first opportunity to pass upon and correct alleged violations of federal constitutional guarantees. See,e.g., Coleman v.

Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991). A federal petition that is completely unexhausted in the state courts is subject to immediate dismissal. See,e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.2001). Given the multiple defects presented, the action will be dismissed without prejudice. Petitioner is informed that a one year federal limitation period applies to a federal habeas petition under 28 U.S.C. § 2244(d)(1). IT THEREFORE IS ORDERED that this action shall be DISMISSED without prejudice. IT FURTHER IS ORDERED that a certificate of appealability is DENIED, as jurists of reason would not find a without prejudice dismissal of a defective action and facially unexhausted petition approximately five months after the date of the judgment of conviction stated in the petition to be debatable or wrong. The Clerk of Court shall enter final judgment accordingly, dismissing this action without prejudice. DATED: October 25, 2010

___________________________________ KENT J. DAWSON United States District Judge

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