Mendoza v. Baca et al

Filing 10

ORDERED that this action is DISMISSED without prejudice. FURTHER ORDERED that petitioner's # 8 Motion for appointment of counsel is DENIED as moot. FURTHER ORDERED that petitioner is denied a certificate of appealability. FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. Signed by Judge Howard D. McKibben on 9/23/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL ANDRADE-MENDOZA,

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Petitioner,

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vs.

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3:15-cv-00280-HDM-WGC

ISIDRO BACA, et al.,

ORDER
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Respondents.
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In this habeas corpus action, on July 16, 2015, the court ordered that it had examined the

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habeas corpus petition of the petitioner, Daniel Andrade-Mendoza, pursuant to Rule 4 of the Rules

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Governing Section 2254 Cases in the United States District Courts, and found it to be defective, in

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that Andrade-Mendoza has not exhausted, in state court, any claim cognizable in this federal habeas

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corpus action. See Order entered July 16, 2015 (ECF No. 5). The court granted Andrade-Mendoza

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45 days -- to August 31, 2015 -- to show cause why this action should not be dismissed. See id.

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On August 12, 2015, Andrade-Mendoza filed a response to the order to show cause
(ECF No. 9), and a motion for appointment of counsel (ECF No. 8).

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Andrade-Mendoza’s response to the order to show cause fails to show that he has exhausted

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in state court any claim that might be cognizable in this federal habeas corpus action. Evidently, no

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such claim was exhausted on his direct appeal, and his first state habeas action remains pending in

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the state district court.

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Andrade-Mendoza complains that his appellate counsel was ineffective in not raising any

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federal constitutional claims on his direct appeal. However, any claim of ineffective assistance of

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appellate counsel must be exhausted in Andrade-Mendoza’s state habeas action, which remains

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pending, before he may assert such a claim in a federal habeas corpus action.

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Andrade-Mendoza requests that this federal action be stayed, apparently pending the

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completion of his state habeas action. In some cases, a federal district court may permit the filing of

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a federal habeas petition even though it contains no claims exhausted in state court. See Pace v.

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DiGuglielmo, 544 U.S. 408, 416 (2005); Bonner v. Carey, 425 F.3d 1145, 1149 n.20 (9th Cir.2005).

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In Pace, the Supreme Court stated that a petitioner might file “a ‘protective’ petition in federal court

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and [ask] the federal court to stay and abey the federal habeas proceeding until state remedies are

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exhausted.” Pace, 544 U.S. at 416. “A petitioner’s reasonable confusion about whether a state filing

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would be timely will ordinarily constitute “good cause” for him to file in federal court.” Id. In this

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case, however, there is no showing of any reason for confusion regarding the timeliness of Andrade-

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Mendoza’s pending state habeas action. Andrade-Mendoza’s federal habeas petition simply appears

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to be premature. There is no showing of good cause for a stay of this action.

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IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice.

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IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel

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(ECF No. 8) is DENIED as moot.

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IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.

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Dated this 23rd day of September, 2015.

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UNITED STATES DISTRICT JUDGE
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