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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1 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Steven Canonico, 5 Case No. 2:23-cv-01460-CDS-MDC Petitioner 6 v. 7 State of Nevada, et al., 8 Order Dismissing Petition and Closing Case [ECF No. 8] Respondents 9 10 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. 17 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). 25 26 27 28 1 Nevada Supreme Court Case No. 87438. 1 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. 6 It is therefore ordered that the petition [ECF No. 8] is dismissed without prejudice as 7 set forth in this order. 8 It is further ordered that a certificate of appealability is denied. 9 The Clerk of Court is kindly instructed to enter judgment accordingly and close this case. 10 Dated: June 4, 2024 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _______________________________ United States District Judge

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