Griffin v. State of Nevada

Filing 6

ORDER that this action is DISMISSED without prejudice. FURTHER ORDERED that a certificate of appealability is DENIED because jurists of reason would not find the court's dismissal of this action without prejudice to be debatable or incorrect. F URTHER ORDERED that 1 Motion/Application for Leave to Proceed in forma pauperis; 2 Motion for Hearing; 3 Motion/Application for Leave to Proceed in forma pauperis; 4 Motion to Appoint Counsel; and 5 Motion for Hearing; are all DENIED as moot. FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case. Signed by Judge Jennifer A. Dorsey on 2/5/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANGELO GRIFFIN,
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Petitioner,

2:14-cv-02101-JAD-CWH

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vs.
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ORDER
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STATE OF NEVADA, et al.,

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Respondents.

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This action is a pro se petition for a writ of habeas corpus submitted while petitioner was being

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held in the Clark County Detention Center. The court has reviewed the petition and concludes that,

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under Rule 4 of the Rules Governing § 2254 Cases, the petition must be dismissed.

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A federal court will not grant a state prisoner’s petition for habeas relief until the prisoner has

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exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28

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U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his claims

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before he presents those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844

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(1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the

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petitioner has given the highest available state court the opportunity to consider the claim through direct

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appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004);

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Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).

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Having reviewed the petition in this case, the court concludes that petitioner’s claims are

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unexhausted. Petitioner states that, beginning in August 2014, he was held illegally in Clark County

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Detention Center awaiting extradition to Virginia (Doc. 3-1). Petitioner used the form for a state

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postconviction petition and repeatedly states in his petition that this is his “first court action” on this

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matter. Because petitioner has not exhausted his grounds for relief in state court, this action shall be

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dismissed.

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Moreover, the online state court docket indicates that the extradition order was signed at a

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hearing on December 17, 2014, at which petitioner was represented by counsel, and the Eighth Judicial

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District Court case regarding the extradition has been closed. Presumably, petitioner has been

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extradited to Virginia.

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It does not appear from the papers presented that a dismissal without prejudice will materially

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affect a later analysis of any timeliness issue with regard to a promptly filed new action. Petitioner at

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all times remains responsible for properly exhausting his claims, for calculating the running of the

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federal limitation period as applied to his case, and for properly commencing a timely-filed federal

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habeas action.

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The court finally notes that allegations of violations of extradition rights may implicate 42

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U.S.C. § 1983, rather than habeas corpus. See, e.g., Weilburg v. Shapiro, 488 F.3d 1202, 1206-1207

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(9th Cir. 2007).

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IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED because jurists

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of reason would not find the court’s dismissal of this action without prejudice to be debatable or

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incorrect.

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IT IS FURTHER ORDERED that the following motions filed by petitioner: application to

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proceed in forma pauperis (Doc. 1); motion for emergency hearing (Doc. 2); application to proceed in

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forma pauperis (Doc. 3); motion for appointment of counsel (Doc. 4); and motion for evidentiary

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hearing (Doc. 5) are all DENIED as moot.

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IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and
close this case.
Dated: February 5, 2015.

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UNITED STATES DISTRICT JUDGE
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