Turner v. NDOC et al

Filing 9

ORDER Granting Petitioner's 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk shall file and electronically serve the 1 -1 petition on the respondents, for informational purposes only. The Clerk shall add Adam Paul L axalt, Nevada Attorney General, as counsel for respondents. This action is DISMISSED without prejudice. Petitioner's 4 Motion for Appointment of Counsel, 5 Motion for Court Order, 6 Motion for Appointment of Counsel, 7 Motion for Evidentiary Hearing, and 8 Motion for Relief are Denied as moot. FURTHER ORDERED that a certificate of appealability is DENIED. The Clerk shall enter judgment accordingly and close this case. Signed by Judge Richard F. Boulware, II on 12/19/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN TURNER,

Case No. 2:17-cv-01084-RFB-VCF

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Petitioner,

ORDER

v.
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NEVADA
DEPARTMENT
CORRECTIONS, et al.,

OF

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Respondents.
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Petitioner John Turner has submitted a pro se habeas corpus petition (ECF No. 1-

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1). His application to proceed in forma pauperis (ECF No. 1) shall be granted. The

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petition shall be dismissed without prejudice because Turner’s state-court proceedings

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are ongoing, and he has not exhausted his claims.

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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. Lundy,

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

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

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

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Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has

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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

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(9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).

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Here, petitioner has attached documents from his state postconviction

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proceedings. The court may also take notice of the dockets of the Nevada Supreme

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Court and the Nevada Court of Appeals. Taken together, they reflect that Turner’s appeal

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of the denial of his state postconviction petition is pending before the Nevada Court of

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Appeals (see ECF No. 1-1, p. 32, 37; Nevada Court of Appeals Case No. 72602). The

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resolution of Turner’s state postconviction petition could render a federal habeas petition

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moot. Accordingly, this federal petition shall be dismissed without prejudice to petitioner

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filing a new federal habeas petition, in a new case with a new case number and a new,

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completed application to proceed in forma pauperis with the required financial

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information.
IT IS THEREFORE ORDERED that petitioner’s application for leave to proceed

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in forma pauperis (ECF No. 1) is GRANTED.

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IT IS FURTHER ORDERED that the Clerk shall file and ELECTRONICALLY
SERVE the petition (ECF No. 1-1) on the respondents, for informational purposes only.

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IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada
Attorney General, as counsel for respondents.

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IT IS FURTHER ORDERED that this action is DISMISSED without prejudice as
set forth in this order.
IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel

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(ECF No. 4), motion for court order (ECF No. 5), motion for appointment of counsel

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(ECF No. 6), motion for evidentiary hearing (ECF No. 7), and motion for relief (ECF No.

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8) are DENIED as moot.

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

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IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and

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close this case.

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DATED: 19 December 2017.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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