Ruz-Lopez v. Baker et al

Filing 8

ORDER. IT IS ORDERED that the Clerk shall file and ELECTRONICALLY SERVE the petition 1 -1 on the respondents. IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada Attorney General, as counsel for respondents. IT IS FURTHER OR DERED that this action is DISMISSED without prejudice as set forth in this order. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case. Signed by Judge Kent J. Dawson on 12/13/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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YOSVANY RUZ LOPEZ,

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Case No. 2:16-cv-01708-KJD-NJK
Petitioner,

ORDER

v.
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WARDEN R BAKER, et al.,
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Respondents.
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Petitioner Yosvany Ruz Lopez has submitted a pro se habeas corpus petition

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(ECF No. 1-1) and has now paid the filing fee (see ECF No. 6). The petition shall be

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dismissed without prejudice because it is wholly unexhausted.
A federal court will not grant a state prisoner’s petition for habeas relief until the

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prisoner has exhausted his available state remedies for all claims raised. Rose v.

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Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state

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courts a fair opportunity to act on each of his claims before he presents those claims in

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a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also

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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

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claim through direct appeal or state collateral review proceedings. See Casey v. Moore,

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386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir.

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1981).

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Here, petitioner was convicted in a state-court case as well as in a federal case,

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and he seeks to challenge his sentence structure (ECF No. 1-1). He acknowledges on
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the face of his petition that he has not exhausted any claims in the state courts. Id.
However, a challenge to the calculation or structure of his sentences may impact the
date of his release from custody, which may implicate his rights under 28 U.S.C. §
2254. Petitioner must first present this claim to the Nevada state courts.
IT IS THEREFORE ORDERED that the Clerk shall file and ELECTRONICALLY
SERVE the petition (ECF No. 1-1) on the respondents.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice as
set forth in this order.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.

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DATED: 13 December 2016.

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KENT J. DAWSON
UNITED STATES DISTRICT JUDGE

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