Spisak v. State of Nevada et al

Filing 12

ORDER DISMISSING CASE without prejudice for petitioner's failure to exhaust his available state-court remedies. The Clerk of the Court shall enter judgment accordingly. A certificate of appealability is DENIED. Signed by Judge Miranda M. Du on 07/09/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN STEVEN SPISAK,
Petitioner,

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Case No. 3:12-cv-00588-MMD-VPC
ORDER

v.
STATE OF NEVADA, et al.,
Respondents.

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The Court directed petitioner to show cause why this action should not be

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dismissed for petitioner’s failure to exhaust his available state-court remedies. The

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Court also directed petitioner to file an amended petition. Order (dkt. no. 4). Petitioner

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then filed a writ of errata (dkt. no. 8) to the objection. Petitioner has filed a reply and

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objection (dkt. no. 10) and a writ of errata to the reply and objection (dkt. no. 9).1

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These documents do not comply with the Court’s order. First, petitioner does not

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address the Court’s determination that the petition appears to be completely

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unexhausted. Petitioner’s argument is rambling, but he appears to claim that his petition

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should be granted because the respondents have not filed a response within the time

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required by 28 U.S.C. § 2243. The Court has not ordered the respondents to respond.

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Petitioner also has filed a 214 page objection (dkt. no. 7) and errata (dkt. no. 8)
to the minute order reassigning this action to the undersigned.

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The Court reviewed the petition pursuant to Rule 4 of the Rules Governing Section 2254

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Cases in the United States District Courts.2 The Court noticed a potential failure to

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exhaust, which the Court may address on its own motion, and gave petitioner the

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opportunity to address the defect. Petitioner has not taken the opportunity. Second,

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petitioner has not submitted to the Court an amended petition to correct two other

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defects. Even if the Court was incorrect about the apparent failure to exhaust, petitioner

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still has not presented any claims that are addressable in federal habeas corpus.

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Reasonable jurists would not find the Court’s conclusions, either on the failure to

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exhaust or the failure to present valid constitutional claims, to be debatable or wrong.

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The Court will not issue a certificate of appealability.

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IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice

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for petitioner’s failure to exhaust his available state-court remedies. The Clerk of the

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Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
DATED THIS 9th day of July 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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To the extent that petitioner is arguing that this is not a petition pursuant to 28
U.S.C. § 2254, he is incorrect. Petitioner is in custody pursuant to the judgment of a
state court, and he is challenging the validity of that custody. Section 2254 is the
applicable provision.