Jones v. Baker et al

Filing 22

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)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 JOHNNY JONES, 11 12 13 Case No. 3:16-cv-00114-MMD-WGC Petitioner, ORDER v. RENEE BAKER, et al., Respondents. 14 15 I. 16 Before the court are the petition for a writ of habeas corpus (ECF No. 4) and 17 respondents’ motion to dismiss (ECF No. 13). The court finds that the petition is 18 completely unexhausted, and the court grants the motion. SUMMARY 19 II. 20 Before a federal court may consider a petition for a writ of habeas corpus, the 21 petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To 22 exhaust a ground for relief, a petitioner must fairly present that ground to the state’s 23 highest court, describing the operative facts and legal theory, and give that court the 24 opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 25 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982). DISCUSSION 26 Respondents correctly argue that petitioner has not exhausted the available state- 27 court remedies for any of his grounds in the petition. Both grounds for relief are claims of 28 ineffective assistance of counsel. Petitioner did present claims of ineffective assistance 1 1 of counsel in a post-conviction habeas corpus petition filed in state district court. (Exh. 2 164, ECF No. 19-39).1 The state district court denied that petition. (Exh. 191, ECF No. 3 20-12). When respondents filed their motion to dismiss, petitioner had not appealed the 4 denial of his state petition. Petitioner has since appealed the decision, but the appeal still 5 is pending in the Nevada Supreme Court. Jones v. State, No. 71766.2 The petition is 6 therefore completely unexhausted. Moreover, by not responding to the motion to dismiss, 7 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 8 9 wrong, and the court will not issue a certificate of appealability. 10 11 Respondents have filed a motion for waiver of compliance with LR IA 10-3 (ECF No. 21). The court grants this motion. 12 III. 13 It is therefore ordered that respondents’ motion for waiver of compliance with LR 14 CONCLUSION IA 10-3 (ECF No. 21) is granted. 15 It is further ordered that respondents’ motion to dismiss (ECF No. 13) is granted. 16 This action is dismissed without prejudice for petitioner’s failure to exhaust his available 17 state-court remedies. The clerk of the court will enter judgment accordingly and close this 18 action. 19 It is further ordered that a certificate of appealability is denied. 20 DATED THIS 25th day of 2017. 21 22 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 23 24 25 1The 27 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. 28 2http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=41988 26 August 24, 2017). 2 (report generated

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