Merritte v. State of Nevada

Filing 6

ORDER Denying as moot 1 and 4 Applications for Leave to Proceed in forma pauperis. Denying 5 Motion to Stay. Show Cause Response due within 30 days. Signed by Judge James C. Mahan on 9/11/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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DEVELLE MERRITTE,

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Petitioner,

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vs.

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STATE OF NEVADA, et al.,

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Case No. 2:14-cv-00587-JCM-NJK

Respondents.

ORDER

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Petitioner has submitted two applications to proceed in forma pauperis (#1, #4), a petition

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for a writ of habeas corpus, and a motion to stay (#5). The applications are moot because petitioner

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has paid the filing fee. The court has reviewed the petition pursuant to Rule 4 of the Rules

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Governing Section 2254 Cases in the United States District Courts. The court will deny the motion

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to stay. Petitioner will need to show cause why the court should not dismiss the action for the

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failure to exhaust his available state-court remedies.

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The petition is a handwritten version of a state habeas corpus petition form, and it is directed

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toward the Eighth Judicial District Court of the State of Nevada. However, it contains sufficient

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information for the court to review it. Petitioner was convicted pursuant to a jury verdict of

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attempted murder with the use of a deadly weapon, battery with the use of a deadly weapon

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resulting in substantial bodily harm, robbery with the use of a deadly weapon, robbery with the use

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of a deadly weapon of a victim sixty (60) years of age or older, first-degree kidnaping with the use

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of a deadly weapon of a victim sixty (60) years of age or older, coercion with the use of a deadly

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weapon, possession of a credit card without the cardholder’s consent, grand larceny, two counts of

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burglary while in possession of a deadly weapon, two counts of conspiracy to commit robbery, and

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three counts of assault with the use of a deadly weapon. Petitioner appealed. The Nevada Supreme

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Court determined that insufficient evidence supported the verdicts for the three counts of assault

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with a deadly weapon. It reversed for entry of an amended judgment of conviction that eliminated

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those counts. It affirmed in all other respects.

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Petitioner has filed a post-conviction habeas corpus petition in state district court.

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According to his motion to stay (#5) and the on-line docket of the Eighth Judicial District Court in

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State v. Merritte, No. 10C265381-2,1 the petition is still pending in the state district court.

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Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must

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exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a

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petitioner must fairly present that ground to the state’s highest court, describing the operative facts

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and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan

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v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).

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Petitioner’s ground for relief is that trial counsel provided ineffective assistance. The direct-

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appeal order attached to the petition shows that petitioner did not raise this claim on direct appeal.

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Indeed, Nevada requires a claim of ineffective assistance of counsel to be raised in a post-conviction

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habeas corpus petition. Gibbons v. State, 634 P.2d 1214, 1216 (Nev. 1981). The state habeas

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corpus petition is still pending in state district court, and the Nevada Supreme Court has not yet had

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the opportunity to rule upon the claim. Consequently, the petition appears to be completely

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unexhausted.

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A stay is not appropriate for this action. If, as it appears, the petition is completely

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unexhausted, the court is obliged to dismiss the action. See Rasberry v. Garcia, 448 F.3d 1150,

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1154 (9th Cir. 2006). The court denies the motion to stay (#5).

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IT IS THEREFORE ORDERED that the applications to proceed in forma pauperis (#1, #4)
are DENIED as moot.

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https://www.clarkcountycourts.us/Anonymous/CaseDetail.aspx?CaseID=7682889 (report
generated September 9, 2014).
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IT IS FURTHER ORDERED that the motion to stay (#5) is DENIED.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date of entry

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of this order to show cause why the court should not dismiss this action for failure to exhaust the

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available state-court remedies. Failure to comply with this order will result in the dismissal of this

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action.

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DATED: September 11, 2014.

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_________________________________
JAMES C. MAHAN
United States District Judge

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