Perez-Marquez v. Gentry

Filing 6

ORDER. IT IS THEREFORE ORDERED that 4 , 5 petitioner's motions for a temporary restraining order and a preliminary injunction are DENIED. IT IS FURTHER ORDERED that this action shall remain CLOSED. To the extent petitioner wishes to further pursue habeas relief, he must file a NEW action with either the $5.00 filing fee or a completed application to proceed in forma pauperis on the proper form with both an inmate account statement for the past six months and a properly executed financial certificate. Signed by Judge James C. Mahan on 8/10/17. (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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OSCAR PEREZ-MARQUEZ,
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Petitioner,
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vs.
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JO GENTRY, et al.,
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Respondents.
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____________________________________/

2:17-cv-01718-JCM-PAL
ORDER

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Notwithstanding this court’s dismissal of this case, petitioner, a Nevada prisoner, has filed

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motions for a temporary restraining order and a preliminary injunction. ECF Nos. 4/5. With those

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motions, he asks this court to enter an order forthwith directing respondents to show cause why they

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should not be ordered to correct an allegedly erroneous calculation of his statutory time credits.

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“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v.

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Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). It is appropriately used to preserve

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a party's rights pending resolution of the merits of his claim. Big Country Foods, Inc. v. Board of

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Educ. of Anchorage School Dist., Anchorage, Alaska, 868 F.2d 1085, 1087 (9th Cir. 1989). The grant

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or denial of a motion for a preliminary injunction is a matter of the district court's discretion. United

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States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir. 1987). “Granting a motion for

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preliminary injunction is appropriate when the plaintiff demonstrates either (1) probable success on

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the merits and the possibility of irreparable harm, or that serious questions exist regarding the merits

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and the balance of hardships tips sharply in plaintiff's favor.” Southwest Voter Registration

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Education Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc). “The irreducible

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minimum is that the moving party demonstrate a fair chance of success on the merits or questions . . .

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serious enough to require litigation. No chance of success at all will not suffice.” Sports Form, Inc.

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v. United Press Internat'l, Inc., 686 F.2d 750, 753 (9th Cir. 1982) (internal quotation marks and

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citations omitted).

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Here, petitioner has not made the required showing. As an initial matter, it appears that

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petitioner has not pursued his claim in the state courts through to a decision on the merits by the state

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supreme court. A state prisoner seeking habeas corpus relief first must exhaust his state court

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remedies before presenting his constitutional claims to the federal courts. 28 U.S.C. § 2254(b). To

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satisfy the exhaustion requirement, the claim must have been fairly presented to the state courts

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completely through to the highest court available, in this case the state supreme court. E.g., Peterson

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v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th

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Cir. 2003).

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Petitioner has attached to his motions an order issued by the Nevada Supreme Court on July

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31, 2017. ECF Nos. 4/5, p. 11. However, that order indicates that petitioner’s appeal was dismissed

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for lack of jurisdiction due to the untimely filing of his notice of appeal. This is insufficient to

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demonstrate that he has satisfied the exhaustion requirement. See Castille v. Peoples, 489 U.S. 346,

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351 (1989); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir.1994).

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Moreover, it also appears as if petitioner’s claim is premised primarily on state law. A

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federal writ of habeas corpus is not available with respect to claims based solely on alleged errors in

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the interpretation or application of state law. Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v.

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McGuire, 502 U.S. 62, 67–68 (1991). Where a state arbitrarily deprives a prisoner of a state created

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liberty interest, the prisoner may state a cognizable claim for federal habeas relief under the Due

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Process Clause. See, e.g., Wolf v. McDonnell, 418 U.S. 539, 571–72 (1974) (holding that a

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state-created right to good-time credits, which could be forfeited only for serious misbehavior,

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constituted a liberty interest protected by the Due Process Clause). However, petitioner needs to

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show that the state acted in an arbitrary manner, not merely that it reached the wrong result as a

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matter of state law. See Wolff, 418 U.S. at 558 (“The touchstone of due process is protection of the

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individual against arbitrary action of government.”). Petitioner falls well short of making the

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necessary showing.

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IT IS THEREFORE ORDERED that petitioner’s motions for a temporary restraining order
and a preliminary injunction (ECF Nos. 4/5) are DENIED.
IT IS FURTHER ORDERED that this action shall remain CLOSED. To the extent
petitioner wishes to further pursue habeas relief, he must file a NEW action with either the $5.00

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filing fee or a completed application to proceed in forma pauperis on the proper form with both an

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inmate account statement for the past six months and a properly executed financial certificate.

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Dated this ______ day of August, 2017.
August 10, 2017.

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UNITED STATES DISTRICT JUDGE
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