Newton v. State of Nevada et al

Filing 4

ORDER Granting Petitioner's 1 Motion/Application for Leave to Proceed in forma pauperis. Petitioner shall not be required to pay the filing fee. The Clerk of Court shall file the Petition and within 30 days of entry of this order Petitione r shall SHOW CAUSE in writing why the federal petition should not be dismissed without prejudice. The State of Nevada shall be DISMISSED as a Respondent and Petitioner has 30 days to file an Amended Petition naming the Sheriff as a Respondent. Signed by Judge Kent J. Dawson on 11/21/2017. (Copies have been distributed pursuant to the NEF - two 2241 Petitions and two copies of 5 Petition mailed to Petitioner - SLD)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 7 8 9 SHELLY J. NEWTON, Petitioner, 10 Case No. 2:17-cv-02894-KJD-GWF 11 vs. ORDER 12 13 STATE OF NEVADA, et al., 14 Respondents. 15 16 This habeas action under 28 U.S.C. § 2241 by a Nevada state pretrial detainee comes 17 before the Court on petitioner’s application (ECF No. 1) to proceed in forma pauperis and for 18 initial review. The Court finds that petitioner is unable to pay the filing fee and therefore will 19 grant the pauper application. 20 On initial review, it appears, inter alia, that the petition is wholly unexhausted and that 21 the petition also is barred under the abstention doctrine in Younger v. Harris, 401 U.S. 37 22 (1971). Petitioner therefore must show cause in writing why the petition should not be 23 dismissed without prejudice. 24 Background 25 Petitioner Shelly Newton seeks the dismissal of two pending state criminal cases and 26 her release from detention. In No. 16C318737, petitioner is charged with escape by a felony 27 prisoner. She was found guilty by a jury verdict in that case on October 18, 2017; and 28 sentencing is set for December 7, 2017. In No. 16C318889, petitioner is charged with escape 1 from electronic supervision. A jury trial is scheduled in that matter for January 29, 2018. 2 Petitioner is represented by the public defender in both cases. 1 3 The online records of the state appellate courts reflect only one proceeding brought 4 by petitioner. Newton filed a proper person original petition for a writ of mandamus in the 5 state supreme court on November 16, 2017, only days before the filing of this action, under 6 No. 74464. She seeks a writ of mandamus directing the state district court to dismiss the 7 pending cases and release her from custody. The only recently filed petition remains pending 8 for consideration by the state appellate courts. Discussion 9 10 Exhaustion 11 A state criminal defendant seeking to restrain pending state proceedings via a federal 12 writ of habeas corpus first must exhaust her state court remedies before presenting her 13 constitutional claims to the federal courts. The exhaustion rule applicable to requests for 14 federal pre-conviction intervention in pending state criminal proceedings is grounded in 15 principles of judicial restraint that predate and operate independently of the statutory 16 exhaustion requirement in § 2254(b)(1). See, e.g., Braden v. 30th Judicial Circuit Court of 17 Kentucky, 410 U.S. 484, 489-92 (1973); Carden v. Montana, 626 F.2d 82, 83 (9th Cir. 1980).2 18 To satisfy the exhaustion requirement, the claim must have been fairly presented to 19 the state courts completely through to the highest court available, in this case the state 20 supreme court. E.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)(en banc); 21 Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner must 22 refer to the specific federal constitutional guarantee and must also state the facts that entitle 23 24 25 26 27 28 1 In addition to the allegations of the petition, the Court takes judicial notice of the online docket records of the state district court and state appellate courts. E.g., Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). The online docket records of the state courts may be accessed from: and 2 Accord Justices of Boston Muni. Court v. Lydon, 466 U.S. 294, 333 (1984)(Stevens, J., concurring in part and concurring in the judgment); Rose v. Lundy, 455 U.S. 509, 515 (1982)(exhaustion doctrine predates statutory codification); Ex parte Hawke, 321 U.S. 114, 117 (1944)(applies to all habeas petitions challenging state custody to avoid interference with the administration of justice in the state courts). -2- 1 the petitioner to relief on the federal constitutional claim. E.g., Shumway v. Payne, 223 F.3d 2 983, 987 (9th Cir. 2000). That is, fair presentation requires that the petitioner present the state 3 courts with both the operative facts and the federal legal theory upon which the claim is 4 based. E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion 5 requirement insures that the state courts, as a matter of federal-state comity, will have the first 6 opportunity to pass upon and correct alleged violations of federal constitutional guarantees. 7 See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991). 8 In the present case, petitioner filed a proceeding in the state appellate courts only days 9 prior to the filing of this matter; and that proceeding remains under consideration at this time. 10 It therefore would appear that petitioner has not exhausted any claims, regardless of the 11 content of his filings in the state appellate courts. 12 Moreover, an original petition for relief filed in the state appellate courts generally does 13 not exhaust claims asserted therein. State appellate courts are not required to consider 14 claims presented in such a petition on the merits, see, e.g., Ex parte Hawk, 321 U.S. 114 15 (1944), and they generally do not do so. Where the state appellate courts decline to exercise 16 original jurisdiction over such a petition and do not decide the merits of any claim raised 17 therein, the proceeding exhausts no claims. See, e.g., Pitchess v. Davis, 421 U.S. 482, 488 18 (1975); Ex parte Hawk, 321 U.S. at 116; Sweet v. Cupp, 640 F.2d 233, 238 (9th Cir. 1981). 19 See also Castille v. Peoples, 489 U.S. 346, 351 (1989)(presenting a claim in a procedural 20 context in which the merits of the claim will not be considered, or will be considered only in 21 special circumstances, does not constitute fair presentation of the claim); Roettgen v. 22 Copeland, 33 F.3d 36, 38 (9th Cir. 1994)(applying the rule to the filing of an original 23 extraordinary petition in a state high court). 24 Accordingly, petitioner must show cause why the federal petition should not be 25 dismissed for lack of exhaustion. In order to establish exhaustion of all federal claims 26 presented herein, petitioner must demonstrate that: (1) each federal claim in this matter was 27 presented to the state courts through to the Supreme Court of Nevada; (2) the proceedings 28 in the state appellate courts have concluded by the issuance of a remittitur or notice in lieu -3- 1 of a remittitur; and (3) the state appellate courts addressed the merits of the claims if the 2 claims were presented in an original petition or other procedural context in which the merits 3 would be considered only in special circumstances. In this regard, petitioner will be required 4 to attach copies with her show-cause response of all of her filings in the state appellate courts 5 upon which she relies to establish exhaustion, along with any written orders thereon. 6 Younger Abstention 7 As a general rule, even when the claims in a petition, arguendo, otherwise have been 8 fully exhausted in the state courts, a federal court will not entertain a habeas petition seeking 9 intervention in a pending state criminal proceeding, absent special circumstances. See, e.g., 10 Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); Carden, 626 F.2d at 83-85; 11 Davidson v. Klinger, 411 F.2d 746 (9th Cir. 1969). This rule of restraint ultimately is grounded 12 in principles of comity that flow from the abstention doctrine of Younger v. Harris, 401 U.S. 13 37 (1971). Under the Younger abstention doctrine, federal courts may not interfere with 14 pending state criminal proceedings absent extraordinary circumstances. 15 16 17 Petitioner therefore must also show cause why the petition should not be dismissed without prejudice under the Younger abstention doctrine. Proper Respondent 18 Petitioner must name her immediate physical custodian, in this instance the sheriff, as 19 a respondent. Rumsfeld v. Padilla, 542 U.S. 426, 434-42 (2004). Moreover, petitioner may 20 not proceed directly against the State of Nevada due to the state sovereign immunity 21 recognized by the Eleventh Amendment. State sovereign immunity bars an action against 22 the State or an arm of the State in federal court regardless of the relief sought. E.g., 23 Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101-02 (1984). The Court 24 expresses no opinion at this juncture as to the appropriateness of the remaining respondents 25 named. The State will be dismissed, and petitioner must file an amended petition naming the 26 sheriff as a respondent. 27 28 IT THEREFORE IS ORDERED that petitioner’s application (ECF No. 1) to proceed in forma pauperis is GRANTED and that petitioner shall not be required to pay the filing fee. -4- 1 IT FURTHER IS ORDERED that the Clerk of Court shall file the petition3 and that, 2 within thirty (30) days of entry of this order, petitioner shall SHOW CAUSE in writing why: (a) 3 the federal petition should not be dismissed without prejudice for lack of exhaustion; and (b) 4 the federal petition further is not subject to dismissal without prejudice based upon the 5 Younger abstention doctrine. 6 IT FURTHER IS ORDERED that all assertions of fact made by petitioner in response 7 to this show-cause order must be detailed, must be specific as to time and place, and must 8 be supported by competent evidence. The Court will not consider any assertions of fact that 9 are not specific as to time and place, that are not made pursuant to a declaration under 10 penalty of perjury based upon personal knowledge, and/or that are not supported by 11 competent evidence filed by petitioner in the federal record. Petitioner must attach copies of 12 all materials upon which petitioner bases an argument that the petition should not be 13 dismissed. Unsupported assertions of fact will be disregarded. 14 IT FURTHER IS ORDERED that, if petitioner maintains that any claims in the petition 15 have been exhausted, petitioner shall attach with his show-cause response: (a) copies of any 16 and all papers that were accepted for filing in the state courts that she contends demonstrate 17 that each federal claim in the present matter is exhausted; and (b) copies of all written state 18 court decisions on the claims. 19 IT FURTHER IS ORDERED that the State of Nevada shall be DISMISSED as a 20 respondent herein and that petitioner shall have thirty (30) days within which to file an 21 amended petition naming the sheriff as a respondent. If petitioner fails to timely do so, the 22 action will be dismissed without further advance notice. 23 IT FURTHER IS ORDERED that petitioner shall clearly title the amended petition as 24 an amended petition by placing the word "AMENDED" immediately above "Petition for a Writ 25 of Habeas Corpus" on page 1 and shall place the docket number, 2:17-cv-02894-KJD-GWF, 26 in the space to the right of the caption. Under Local Rule LR 15-1, the amended petition must 27 28 3 This order does not explicitly or implicitly hold that the petition otherwise is free of deficiencies. -5- 1 be complete in itself without reference to previously filed papers. Thus, the claims and 2 allegations that are stated in the amended petition will be the only matters remaining before 3 the Court. Any claims or allegations that are left out of the amended petition or that are not 4 re-alleged therein no longer will be before the Court. 5 If petitioner does not timely and fully respond to this order, or does not show adequate 6 cause as required, the entire petition will be dismissed without further advance notice. Given 7 that this action seeks to restrain ongoing state criminal proceedings, requests for extension 8 of time to respond to this order will be considered only in the most compelling of 9 circumstances. The continuing pendency of proceedings in the state appellate courts will not 10 constitute compelling circumstances supporting an extension request. 11 demonstrate that the action is not subject to dismissal within the time allowed, based upon 12 the state of affairs existing as of that time. Nothing herein restrains any state proceeding. 13 14 15 The Clerk shall SEND the petitioner two copies each of her petition and an AO-0242 form for a § 2241 petition, which can be retrieved from the forms page on the JNet. DATED: November 21, 2017 16 17 18 19 Petitioner must _________________________________ KENT J. DAWSON United States District Judge 20 21 22 23 24 25 26 27 28 -6-

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