Jones v. Baker et al
ORDER - Respondents' motion for waiver of compliance with LR IA 10-3 (ECF No. 21 ) is granted. Respondents' motion to dismiss (ECF No. 13 ) is granted. This action is dismissed without prejudice for petitioner's failure to exhaust his available state-court remedies. The clerk of the court will enter judgment accordingly and close this action. A certificate of appealability is denied. Signed by Judge Miranda M. Du on 8/25/2017. (Copies have been distributed pursuant to the NEF - DRM)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 3:16-cv-00114-MMD-WGC
RENEE BAKER, et al.,
Before the court are the petition for a writ of habeas corpus (ECF No. 4) and
respondents’ motion to dismiss (ECF No. 13). The court finds that the petition is
completely unexhausted, and the court grants the motion.
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).
Respondents correctly argue that petitioner has not exhausted the available state-
court remedies for any of his grounds in the petition. Both grounds for relief are claims of
ineffective assistance of counsel. Petitioner did present claims of ineffective assistance
of counsel in a post-conviction habeas corpus petition filed in state district court. (Exh.
164, ECF No. 19-39).1 The state district court denied that petition. (Exh. 191, ECF No.
20-12). When respondents filed their motion to dismiss, petitioner had not appealed the
denial of his state petition. Petitioner has since appealed the decision, but the appeal still
is pending in the Nevada Supreme Court. Jones v. State, No. 71766.2 The petition is
therefore completely unexhausted. Moreover, by not responding to the motion to dismiss,
petitioner consents to the court granting it. See LR 7-2(d).
Reasonable jurists would not find the court’s determination to be debatable or
wrong, and the court will not issue a certificate of appealability.
Respondents have filed a motion for waiver of compliance with LR IA 10-3 (ECF
No. 21). The court grants this motion.
It is therefore ordered that respondents’ motion for waiver of compliance with LR
IA 10-3 (ECF No. 21) is granted.
It is further ordered that respondents’ motion to dismiss (ECF No. 13) is granted.
This action is dismissed without prejudice for petitioner’s failure to exhaust his available
state-court remedies. The clerk of the court will enter judgment accordingly and close this
It is further ordered that a certificate of appealability is denied.
DATED THIS 25th day of 2017.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
court makes no statement whether the grounds in the current federal petition match
the grounds in the state habeas corpus petition. The grounds are unexhausted not
because the grounds in the federal petition do not match the grounds in the state petition,
but because the Nevada Supreme Court has not yet decided the appeal.
August 24, 2017).
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