Delgado v. State of Nevada

Filing 5

ORDER DISMISSING CASE. Petitioner's 4 Motion/Application for Leave to Proceed in forma pauperis is Granted. Petitioner does not have to pay the $5.00 filing fee. The Clerk of Court is directed to detach and file the 1 -1 Petition for Writ of Habeas Corpus. This action is DISMISSED without prejudice. The Clerk of Court is directed to enter Judgment accordingly and close this case. IT IS FURTHER ORDERED that a certificate of appealability is Denied. Signed by Judge Jennifer A. Dorsey on 5/11/2018. (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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Orlando Delgado,

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Petitioner

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Order Dismissing Case

v.

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Case No.: 2:17-cv-02809-JAD-CWH

State of Nevada,
Respondent

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Pro se petitioner Orlando Delgado is an inmate at the Clark County Detention Center who

10 was allegedly detained for some videos that he posted on the internet about government
11 officials. 1 He now petitions for a writ of habeas corpus, arguing that his arrest and detention
12 violate his First Amendment right to freedom of speech. 2 But there are two problems with his
13 petition: (1) he has identified an incorrect respondent, 3 and (2) there is a pending state action
14 against him. The latter flaw is fatal to Delgado’s petition, so I dismiss his case without leave to
15 amend because amendment would be futile.
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Discussion

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Federal courts should abstain from intervening in pending state criminal proceedings

18 unless there are extraordinary circumstances of a great and immediate danger of irreparable
19 harm. 4 A court “must abstain under Younger if four requirements are met: (1) a state-initiated
20 proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the federal
21 plaintiff is not barred from litigating federal constitutional issues in the state proceeding; and (4)
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ECF No. 1-1.

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Id.

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Delgado has identified the State of Nevada as the respondent, but the proper respondent is the
person who has custody over him. 28 U.S.C. § 2242. In this case, that would be the Sheriff of
26 Clark County.
27 4 Younger v. Harris, 401 U.S. 37, 45–46 (1971); see also Ex Parte Royall, 117 U.S. 241, 251
28 (1886).
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1 the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e.,
2 would interfere with the state proceeding in a way that Younger disapproves.” 5
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First, there is a criminal action pending against Delgado because he wants me to stop it.

4 Second, the state has an important interest in prosecuting crimes. 6 Third, Delgado may raise his
5 First Amendment claims in the state courts by motions before the trial court, on appeal, or in a
6 post-conviction state habeas corpus petition. Fourth, if I granted Delgado the relief that he
7 requests, his state-court criminal action would be terminated—an action that Younger
8 disapproves of. Because all four of the Younger abstention requirements are met, I abstain from
9 considering this petition and deny it. I also decline to issue a certificate of appealability because
10 reasonable jurists would not find this conclusion to be debatable or wrong.
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Accordingly, IT IS HEREBY ORDERED that the application to proceed in forma

12 pauperis [ECF No. 4] is GRANTED. Delgado DOES NOT have to pay the $5.00 filing fee.
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The Clerk of Court is directed to DETACH and FILE the petition for a writ of habeas

14 corpus under 28 U.S.C. § 2254 [ECF No. 1-1].
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IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to

16 Delgado’s ability to litigate his claims in the correct court at the correct time. The Clerk of
17 Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE.
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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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Dated: May 11, 2018
_______________________________
U.S. District Judge Jennifer A. Dorsey

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San Jose
26 F.3d 1087, Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546
1092 (9th Cir. 2008).
27 6 See Kelly v. Robinson, 479 U.S. 36, 49 (1986); Rose v. Mitchell, 443 U.S. 545, 585 (1979);
28 Younger, 401 U.S. at 43–44.

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