Isaza v. State of Nevada

Filing 9

ORDER that this action is DISMISSED without prejudice for petitioner's failure to exhaust his available state-court remedies. The clerk of the court shall enter judgment accordingly. FURTHER ORDERED that a certificate of appealability is DENIED. Signed by Judge Richard F. Boulware, II on 7/20/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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RIGOBERTO ENRIQUE ISZAZ,

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Petitioner,

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vs.

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D.W. NEVEN, et al.,

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Case No. 2:15-cv-00676-RFB-GWF

Respondents.

ORDER

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The court directed petitioner to show cause why the court should not dismiss this action for his

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failure to exhaust his available state-court remedies. Order (#4). Specifically, the court noted that

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petitioner could not have exhausted any grounds because his direct appeal from the judgment of

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conviction had commenced recently and briefing had not even started. See Sherwood v. Tomkins, 716

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F.2d 632, 634 (9th Cir. 1983). Petitioner has submitted a brief and statement (#8). Petitioner’s

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response does not address the court’s concern. Instead, petitioner is arguing that the trial court judge

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violated his constitutional rights. This is a claim for relief that petitioner needs to raise on direct appeal,

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not a defense to the exhaustion requirement of 28 U.S.C. § 2254(b).

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The court has reviewed again the on-line docket of the Nevada Supreme Court in Iszaz v. State,

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No. 67550.1 The fast-track statement and the fast-track response have been filed, but there has been no

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decision yet. This action is therefore completely unexhausted, and the court legally must and will

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dismiss it.

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2015).

http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=35754 (last visited July 6,

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Reasonable jurists would not find the court’s decision to be debatable or wrong, and the court
will not issue a certificate of appealability.

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

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petitioner’s failure to exhaust his available state-court remedies. The clerk of the court shall enter

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judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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DATED: July 20, 2015.

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_________________________
RICHARD F. BOULWARE, II
United States District Judge

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