Johnson v. Williams et al

Filing 5

ORDER denying 3 Motion for Appointment of Counsel ; ORDER denying 4 Motion for Hearing; This action is DISMISSED without prejudice. Certificate of appealability is DENIED. Signed by Judge Richard F. Boulware, II on 4/12/2018.; Case terminated. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 LAUSTEVEION JOHNSON, 10 11 12 13 Case No. 2:18-cv-00497-RFB-NJK Petitioner, ORDER v. BRIAN WILLIAMS, et al., Respondents. 14 15 Petitioner Lausteveion Johnson has submitted a pro se habeas corpus petition 16 but he has failed to submit an application to proceed in forma pauperis or pay the filing 17 fee. Accordingly, this matter has not been properly commenced. 28 U.S.C. § 18 1915(a)(2) and Local Rule LSR1-2. 19 The court further notes that it is unclear that petitioner states any claims that are 20 cognizable on federal habeas review and that it appears that his state-court 21 proceedings are ongoing. See Nevada Supreme Court Case No. 74775. A federal 22 court will not grant a state prisoner’s petition for habeas relief until the prisoner has 23 exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 24 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair 25 opportunity to act on each of his claims before he presents those claims in a federal 26 habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. 27 Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has 28 given the highest available state court the opportunity to consider the claim through 1 1 direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 2 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). 3 This federal petition shall be dismissed without prejudice to petitioner filing a new 4 federal habeas petition, in a new case with a new case number and a new, completed 5 application to proceed in forma pauperis with the required financial information or the 6 $5.00 filing fee. 7 IT IS THEREFORE ORDERED that the Clerk shall file and ELECTRONICALLY 8 SERVE the petition (ECF No. 1-1) on the respondents, for informational purposes only. 9 IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada 10 11 12 Attorney General, as counsel for respondents. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice as improperly commenced. 13 IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 14 IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel 15 (ECF No. 3) and motion for evidentiary hearing (ECF No. 4) are both DENIED as moot. 16 IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and 17 close this case. 18 19 DATED: April 12, 2018. 20 21 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 2

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