Mullins v. State of Nevada

Filing 4

ORDER dismissing action without prejudice. Signed by Chief Judge Gloria M. Navarro on 4/18/2018., Case terminated. (Copies have been distributed pursuant to the NEF, cc: 2254 and Comp to P - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No. 2:18-cv-00668-GMN-VCF
JENNA MULLINS,
ORDER

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Petitioner,
v.

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STATE OF NEVADA,
Respondents.

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Petitioner has filed a “motion for emergency hearing for writ of habeas corpus.” (ECF No.

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2). Petitioner asserts in her motion that she is in custody pursuant to an “illegal sentence.” (Id.) It

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would therefore appear that petitioner is attempting to challenge her custody pursuant to a state

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court judgment of conviction. The Court construes the motion as an attempt to file a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition will be dismissed due to numerous

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defects.

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First, petitioner has not properly commenced the action by paying the filing fee or filing a
complete pauper application. LSR 1-1 & 1-2.

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Second, petitioner has not filed the petition on the Court’s form as required by LSR 3-1.

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Third, it appears unlikely that petitioner has exhausted her state court remedies. Petitioner

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must first exhaust her state court remedies before filing a habeas petition in federal court. 28 U.S.C.

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§ 2254(b)(1)(A). To satisfy this exhaustion requirement, the claim be fairly presented to the state

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courts completely through to the highest state court level of review available. E.g., Peterson v.

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

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(9th Cir. 2003). In the state courts, the petitioner must refer to the specific federal constitutional
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guarantee upon which she relies and must also state the facts that entitle her to relief on that federal

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claim. E.g., Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). That is, fair presentation

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requires that the petitioner present the state courts with both the operative facts and the federal

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legal theory upon which the claim is based. E.g., Castillo v. McFadden, 399 F.3d 993, 999 (9th

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Cir. 2005). The exhaustion requirement insures that the state courts, as a matter of federal state

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comity, will have the first opportunity to pass upon and correct alleged violations of federal

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constitutional guarantees. See, e.g., Coleman v. Thompson, 501 U.S. 722, 731 (1991).

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While the Court is unable to verify the status of petitioner’s criminal proceedings, it notes

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that there are no results for her name in a search of either the Eighth Judicial District Court’s docket

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or the Supreme Court of Nevada’s docket. It therefore would appear that petitioner has not

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exhausted her state court remedies.

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Fourth, petitioner was arrested on the offense for which she is currently in custody only

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recently -- on February 20, 2018 -- and has been sentenced. 1 It is therefore possible that criminal

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proceedings remain ongoing in some fashion. As a general rule, even when the claims in a petition

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have been fully exhausted in the state courts, a federal court will not entertain a habeas petition

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seeking intervention in a pending state criminal proceeding, absent special circumstances. See,

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e.g., Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); Carden, 626 F.2d at 83-85;

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Davidson v. Klinger, 411 F.2d 746 (9th Cir. 1969). This rule of restraint ultimately is grounded in

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principles of comity that flow from the abstention doctrine of Younger v. Harris, 401 U.S. 37

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(1971). Under the Younger abstention doctrine, federal courts may not interfere with pending state

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criminal proceedings absent extraordinary circumstances.

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Finally, petitioner has filed her petition against the State of Nevada. Petitioner may not

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proceed in federal court against the State of Nevada due to the state sovereign immunity recognized

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by the Eleventh Amendment. See, e.g., Pennhurst State School & Hospital v. Halderman, 465

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U.S. 89, 100-01 (1984) (a State may not be sued in federal court regardless of the relief sought).

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Petitioner must name, in any newly filed petition, her immediate physical custodian.

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See https://www5.lasvegasnevada.gov/InmateSearch/ (last visited April 13, 2018).

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It does not appear that a dismissal without prejudice would materially impact the

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application of the limitation period in a promptly filed new action or otherwise cause substantial

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prejudice. It therefore is ordered that this action shall be dismissed without prejudice. Petitioner

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shall file any new petition, and either pay the filing or fee or submit a complete pauper application,

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in a new action only, and shall not file any more documents in this case. This action is closed, and

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petitioner must pursue any further requests for relief in a new action under a new docket number.

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It further is ordered that a certificate of appealability is denied. Jurists of reason would not

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find debatable whether the Court was correct in its dismissal of the action without prejudice on

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procedural grounds, for the reasons discussed herein.

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It further is ordered, pursuant to Rule 4 of the Rules Governing Section 2254 Cases, that

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the Clerk shall make informal electronic service upon respondents by adding Nevada Attorney

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General Adam P. Laxalt as counsel for respondents and directing a notice of electronic filing of

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this order to his office. No response is required from respondents other than to respond to any

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orders of a reviewing court.

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The Clerk of Court shall send petitioner a copy of her papers in this action, along with two

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copies each of the form and instructions for an inmate pauper application and the form for § 2254

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habeas petitions.

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The Clerk of Court shall enter final judgment accordingly, dismissing this action without
prejudice.
DATED THIS 18 day of April2018.
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GLORIA M. NAVARRO
UNITED STATES DISTRICT JUDGE

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