O'Keefe v. LeGrand

Filing 14

ORDER Second IFP application 5 is granted; petitioner's amended petition 7 is dismissed without prejudice for failure to exhaust available state remedies; motions for appointment of counsel 6 , 9 are both denied as moot. Clerk shall enter judgment accordingly and close case. Signed by Judge Robert C. Jones on 2/11/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BRIAN KERRY O’KEEFE,

No. 3:14-cv-00477-RCJ-VPC

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Petitioner,
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vs.

ORDER

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ROBERT LEGRAND,
Respondent.

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Brian Kerry O’Keefe, a Nevada prisoner, has submitted a second application to proceed in forma

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pauperis (ECF #5) and an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

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(ECF #7). The court has reviewed the petition pursuant to Habeas Rule 4, and the petition shall be

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dismissed as discussed below.

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This court dismissed petitioner’s previous petition, filed pursuant to 28 U.S.C. § 2241, for

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failure to exhaust state remedies. 2:11-cv-02109-JCM-VCF. Petitioner appealed, and that appeal is

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pending before the Ninth Circuit Court of Appeals. In that case, petitioner challenged his upcoming

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third trial for murder as a violation of double jeopardy. It appears from the instant petition that the third

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trial was subsequently held, and petitioner was convicted of second-degree murder, with a judgment

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of conviction entered on August 28, 2014 (ECF #7, p. 1).

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In the instant petition, petitioner complains that this court wrongly dismissed his first petition,

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in violation of his Fourteenth Amendment equal protection and due process rights. Clearly, these

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challenges must be raised with the Ninth Circuit in his appeal of the dismissal of the first petition.

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Moreover, it is clear from the face of the instant petition that petitioner has not exhausted his available

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state remedies with respect to the judgment of conviction entered on August 28, 2014. Accordingly,

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the instant petition is dismissed for failure to exhaust available state remedies.
IT THEREFORE IS ORDERED that petitioner’s second application to proceed in forma

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pauperis (ECF #5) is GRANTED.

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IT FURTHER IS ORDERED that the petitioner’s amended petition (ECF #7) is DISMISSED
without prejudice for failure to exhaust available state remedies.

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IT FURTHER IS ORDERED that petitioner’s motions for appointment of counsel (ECF #s
6, 9) are both DENIED as moot.

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IT FURTHER IS ORDERED that the Clerk shall enter judgment accordingly and close this
case.
th
DATED: This 11day ofof February, 2015
Dated, this ___ day February, 2015.

___________________________________
UNITED STATES DISTRICT JUDGE

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