Daniels v. McDaniels et al

Filing 3

ORDER GRANTING 1 Motion/Application for Leave to Proceed in forma pauperis. Petitioner need not pay the filing fee of $5.00. FURTHER ORDERED that the Clerk shall file the petition for writ of habeas corpus and the motion for appoin tment of counsel (ack'd). FURTHER ORDERED that petitioner shall have thirty (30) days to show cause why the court should not dismiss this action for failure to exhaust available state-court remedies. (Notice of Compliance is due by 9/2/2010.) Signed by Judge Larry R. Hicks on 07/30/2010. (Copies have been distributed pursuant to the NEF - MLC)

Daniels v. McDaniels et al

Doc. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner has submitted an application to proceed in forma pauperis (#1), a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and a motion for the appointment of counsel. The court finds that petitioner is unable to pay the filing fee. The court has reviewed the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner will need to show cause why the court should not dismiss this action because petitioner has not exhausted his available remedies in the state courts. Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982). "[A] petitioner for habeas corpus relief under 28 U.S.C. § 2254 exhausts available state remedies only if he characterized the claims he raised in state proceedings specifically as federal vs. E. K. MCDANIEL, et al., Respondents. ALLAN MICAH DANIELS, Petitioner, Case No. 3:10-CV-00315-LRH-(VPC) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Dockets.Justia.com

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claims. In short, the petitioner must have either referenced specific provisions of the federal constitution or statutes or cited to federal case law." Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000) (emphasis in original), amended, 247 F.3d 904 (9th Cir. 2001). Citation to state case law that applies federal constitutional principles will also suffice. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). "The mere similarity between a claim of state and federal error is insufficient to establish exhaustion. Moreover, general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial, are insufficient to establish exhaustion." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citations omitted). Pursuant to a guilty plea, the Eighth Judicial District Court of the State of Nevada convicted petitioner of attempted possession of stolen property. That court sentenced petitioner on January 27, 2009. According to that court's on-line records, it entered judgment of conviction on February 18, 2009.1 Petitioner did not appeal the judgment of conviction.2 Petitioner then filed a postconviction petition in the Eighth Judicial District Court on January 19, 2010. According to that court's on-line records, the court denied the petition on April 27, 2010, entered an order to that effect on June 4, 2010, and sent petitioner notice of the entry of the decision and order on June 7, 2010. Petitioner has not appealed that decision. Petitioner mailed his federal petition to this court on May 23, 2010, before the state district court entered its written order and notice. It is apparent both from the petition and the on-line records that petitioner has never presented any of his grounds for relief to the Nevada Supreme Court, either on direct appeal from the judgment of conviction or on appeal from the denial of his state habeas corpus petition. Petitioner needs to present his grounds for relief to the Nevada Supreme Court before this court can

https://www.clarkcountycourts.us/Anonymous/CaseDetail.aspx?CaseID=7561568 (report generated July 26, 2010). The voluntariness of the guilty plea and the lack of direct appeal are two issues that petitioner raises in the petition. -22

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consider them.3 Consequently, this court will dismiss this action unless petitioner can show cause why it should not be dismissed. The court will defer ruling upon the motion for appointment of counsel until the court determines whether this action may proceed. IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (#1) is GRANTED. Petitioner need not pay the filing fee of five dollars ($5.00). IT IS FURTHER ORDERED that the clerk of the court shall file the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and the motion for appointment of counsel. IT IS FURTHER ORDERED that petitioner shall have thirty days from the date of entry of this order to show cause why the court should not dismiss this action for the failure to exhaust available state-court remedies. Failure to comply with this order will result in the dismissal of this action. DATED this 30th day of July, 2010.

_________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE

This court makes no guarantees that an appeal from the denial of the state habeas corpus petition would be timely. -3-

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