Canonico v. State of Nevada et al

Filing 16

ORDER DISMISSING CASE. It is therefore ordered that the 8 petition is dismissed without prejudice as set forth in this order. It is further ordered that a certificate of appealability is denied.The Clerk of Court is kindly instructed to enter judgment accordingly and close this case. Signed by Judge Cristina D. Silva on 6/4/2024. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - ALZ)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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4 Steven Canonico,
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Case No. 2:23-cv-01460-CDS-MDC
Petitioner

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v.

7 State of Nevada, et al.,
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Order Dismissing Petition and
Closing Case
[ECF No. 8]

Respondents

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In his 28 U.S.C. § 2254 habeas corpus petition, Steven Canonico challenges a judgment of

11 conviction entered in the Eighth Judicial District Court (Clark County) of Nevada adjudicating
12 him guilty, pursuant to a guilty plea agreement, of burglary. ECF No. 8 at 1–2. Because the Nevada
13 appellate docket reflects that his appeal was dismissed as untimely, 1 and Canonico indicates in his
14 federal petition that he has not filed a petition for post-conviction relief in the Eighth Judicial
15 District Court, I directed him to show cause and file such proof as he had to demonstrate that the
16 petition should not be dismissed as unexhausted and premature. ECF No. 14.
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In Canonico’s response to the show-cause order, he states that he believes that he can

18 proceed with his ineffective assistance of counsel claim in federal court because in Nevada
19 ineffective assistance of counsel claims must be raised in a state post-conviction habeas corpus
20 petition and not on direct appeal. See Pellegrini v. State, 34 P.3d 519, 534 (Nev. 2001). He is correct
21 that he must bring the claim in a state habeas petition. But he hasn’t pursued a state post22 conviction petition, so the claim remains unexhausted. As I explained in the show-cause order, I
23 am not permitted to adjudicate a federal habeas petition containing unexhausted grounds for
24 relief. See Rose v. Lundy, 455 U.S. 509, 510 (1982); Rhines v. Weber, 544 U.S. 269, 274–75 (2005).
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Nevada Supreme Court Case No. 87438.

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I must therefore dismiss this petition without prejudice as unexhausted. It appears that

2 Canonico may still be able to timely file a state postconviction petition and present the ineffective
3 assistance of counsel claim to the state courts. See ECF No. 14 at 3. He does not argue in his
4 response to the show-cause order that he has valid reasons to be concerned about being able to file
5 a timely federal petition if this case is dismissed without prejudice.
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It is therefore ordered that the petition [ECF No. 8] is dismissed without prejudice as

7 set forth in this order.
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It is further ordered that a certificate of appealability is denied.

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The Clerk of Court is kindly instructed to enter judgment accordingly and close this case.

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Dated: June 4, 2024

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_______________________________
United States District Judge