Aycock v. Nevada Department of Corrections et al

Filing 4

ORDER Dismissing Petition and Closing Case. Signed by Judge Jennifer A. Dorsey on 9/6/2021. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:21-cv-01468-JAD-BNW Document 4 Filed 09/07/21 Page 1 of 2

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 DEVONTAY AYCOCK,
4

Case No.: 2:21-cv-01468-JAD-BNW

Petitioner

5 v.
6 NEVADA DEPARTMENT OF
CORRECTIONS, et al.,
7
Respondents
8

Order Dismissing Petition and
Closing Case

9
10

Devontay Aycock submitted a pro se petition for writ of habeas corpus under 28 U.S.C.

11 § 2241 1 but failed to pay the $5.00 filing fee or submit a completed application to proceed in
12 forma pauperis. As a result, this matter has not been properly commenced. 2
13

It also appears that Aycock’s petition is unexhausted. A petitioner must give the state

14 courts a fair opportunity to act on each of his claims before he presents those claims in a federal
15 habeas petition, 3 and the federal court will not grant a state prisoner’s petition for habeas relief
16 until he has exhausted his available state remedies for all claims raised 4 by giving the highest
17 available state court the opportunity to consider the claim through direct appeal or state
18 collateral-review proceedings. 5 The Nevada Supreme Court docket reflects that the court
19
20
21

1

ECF No. 1-1.

2

28 U.S.C. § 1915(a)(2) and Local Rule LSR1-2.

3

O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365
22 (1995).
23

4
5

Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b).

See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374,
376 (9th Cir. 1981).

Case 2:21-cv-01468-JAD-BNW Document 4 Filed 09/07/21 Page 2 of 2

1 affirmed Aycock’s convictions on June 11, 2021. 6 Aycock does not state that the has filed a
2 state postconviction habeas corpus petition. His federal petition raises claims of ineffective
3 assistance of counsel, which must first be raised in a state postconviction habeas corpus petition. 7
4 Even if Aycock has in fact filed a state habeas petition, it cannot have been litigated in such a
5 short time. Thus, it appears that Aycock has not exhausted his claims.
6

IT IS THEREFORE ORDERED that the Clerk of Court is directed to detach and file the

7 petition [ECF No. 1-1].
8

IT IS FURTHER ORDERED that this action is DISMISSED without prejudice to

9 Aycock’s ability to file a new petition in a new action with either the $5.00 filing fee or a
10 completed application to proceed in forma pauperis on the proper form with both an inmate
11 account statement for the past six months and a properly executed financial certificate.
12 Petitioner at all times remains responsible for properly exhausting his claims, for calculating the
13 running of the federal limitation period as applied to his case, and for properly commencing a
14 timely-filed federal habeas action.
15

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

16

The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS

17 CASE.
18

Dated: September 6, 2021

19

_________________________________
U.S. District Judge Jennifer A. Dorsey

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21
22
23

6

Nevada Supreme Court Case No. 79684.

7

Pelligrini v. State, 34 P.3d 519, 534 (Nev. 2001), abrogated on other grounds by Rippo v.
State, 423 P.3d 1084 (Nev. 2018).
2