McDonald v. Freeman

Filing 4

ORDER DISMISSING PETITION. IT IS ORDERED that 1 petitioner's application to proceed in forma pauperis is DENIED as moot. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to petitioner's ability to file a n ew petition at an appropriate time in the future when his state criminal proceedings have concluded and his state remedies have been exhausted. IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability. The Clerk of the Court is directed to CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 5/31/17. (Copies have been distributed pursuant to the NEF - MR)

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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Michael L. McDonald, 5 Case No. 2:17-cv-01320-JAD-NJK Petitioner Order Dismissing Petition 6 vs. 7 Michelle Freeman, et al., 8 Respondents 9 Michael L. McDonald, a prisoner at the City of Las Vegas Detention Center, filed an 10 11 application to proceed in forma pauperis and a petition for writ of habeas corpus under 28 U.S.C. 12 § 2241.1 Because McDonald paid the $5 filing fee,2 I deny his IFP application as moot. I then 13 dismiss McDonald’s habeas petition without prejudice. Discussion 14 McDonald’s habeas petition is subject to summary dismissal. McDonald alleges in his 15 16 petition that he is a pretrial detainee facing charges “alleging violation of an extended TRO 17 against domestic violence.”3 He has not been convicted. McDonald claims that his federal 18 constitutional rights are being violated, asserting that he is receiving ineffective assistance of his 19 appointed counsel, he is being subjected to a double-jeopardy violation, he will face cruel and 20 unusual punishment if convicted, and his right to equal protection under the law is being violated 21 as a result of the alleged ineffective assistance of his counsel.4 As relief, he seeks dismissal of 22 23 24 1 All contained at ECF No. 1. 2 ECF No. 3. 3 See Petition at ECF No. 1-1, p. 3. 4 See id. at 7–9. 25 26 27 28 1 the charges against him, release from custody, and damages.5 2 This court has authority to entertain a petition for a writ of habeas corpus by a person in 3 custody but not yet convicted or sentenced.6 But because such detainees are not in custody 4 “pursuant to the judgment of a state court,” their right to petition arises from 28 U.S.C. § 5 2241(c)(3).7 Although there is no exhaustion requirement for a petition brought under 28 U.S.C. 6 § 2241(c)(3), principles of federalism and comity require that the court abstain until all state 7 criminal proceedings are completed and the petitioner has exhausted available state judicial 8 remedies, unless there are special circumstances warranting federal intervention prior to the state 9 criminal trial.8 10 Here, McDonald alleges no special circumstances warranting this court’s intervention in 11 his ongoing state criminal proceedings. Each of his claims is amenable to judicial review 12 through available state procedures. Accordingly, this court will abstain from addressing 13 McDonald’s petition. 14 Additionally, to the extent that McDonald attempts to plead a claim for damages based on 15 the alleged violations that form the basis of his request for habeas relief, no such claim is 16 available to him at this time. Under the Supreme Court’s decision in Heck v. Humphrey, a 17 prisoner cannot use §1983 to obtain damages or other relief where success would necessarily 18 imply the unlawfulness of a (not previously invalidated) conviction or sentence.9 In other words, 19 “if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent 20 with the unlawful behavior for which § 1983 damages are sought, the §1983 action must be 21 22 5 See id. at 9. 24 6 See McNeely v. Blanas, 336 F.3d 822, 824 n. 1 (9th Cir. 2003). 25 7 See id. at 824 n. 1. 26 8 23 27 28 See Carden v. Montana, 626 F.2d 82, 83-84 and n. 1 (9th Cir.), cert. denied, 449 U.S. 1014 (1980). 9 Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). 2 1 dismissed.”10 McDonald thus cannot seek damages for alleged violations of his rights related to 2 his criminal case at this time because they are presently barred under Heck. 3 Conclusion 4 5 IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma pauperis (ECF No. 1) is DENIED as moot. 6 IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to 7 petitioner’s ability to file a new petition at an appropriate time in the future when his state 8 criminal proceedings have concluded and his state remedies have been exhausted. 9 IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability. 10 The Clerk of the Court is directed to CLOSE THIS CASE. 11 DATED: May 31, 2017 12 _______________________________ ______________ _ _ _ _ __ __ _____ Jennifer A. Dorsey fer A. Dorsey United States District Judge d Judge ud 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 Smithhart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996); Wallace v. Kato, 549 U.S. 384, 393–94 (2007). 3

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