Marcelli v. Baca et al

Filing 4

ORDERED ECF No. 1 IFP application is granted. Clerk shall file and e-serve the petition (ECF No. 1 -1) on the respondents. (E-service 10/18/2016 upon subsequent filing.) Clerk shall add AG as counsel for respondents. This action is dismissed wi thout prejudice as set forth in this order. It is further ordered that a certificate of appealability is denied. Clerk shall enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 10/18/2016. (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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***

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ANTHONY MICHAEL MARCELLI,

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Case No. 3:16-cv-00503-MMD-WGC

Petitioner,

ORDER

v.
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ISIDRO BACA, et al.,
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Respondents.
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Petitioner Anthony Michael Marcelli has submitted a pro se habeas corpus

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petition (ECF No. 1-1). His application to proceed in forma pauperis (ECF No. 1) will be

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granted. The petition will be dismissed without prejudice because several claims are not

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cognizable in federal habeas corpus and, to the extent that petitioner includes any

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cognizable claims, they are wholly unexhausted.

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First, a federal court will not grant a state prisoner’s petition for habeas relief until

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the prisoner has exhausted his available state remedies for all claims raised. Rose v.

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Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state

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courts a fair opportunity to act on each of his claims before he presents those claims in

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a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also

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Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the

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petitioner has given the highest available state court the opportunity to consider the

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claim through direct appeal or state collateral review proceedings. See Casey v. Moore,

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386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir.

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1981). Here, Marcelli includes a claim that the Nevada Department of Corrections

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refuses to properly apply the state statutory scheme that provides for good-time credits,

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and therefore, is improperly calculating his sentence. He acknowledges on the face of

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his petition that he has not exhausted any claims in the state courts (see, e.g., ECF No.

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1-1 at 4). Marcelli states that this is because he is not challenging the fact of his

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conviction. (Id.) However, a challenge to the calculation of his sentence may impact the

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date of his release from custody, which may implicate his rights under 28 U.S.C. §

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2254. Marcelli must first present this claim to the Nevada state courts.

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The remaining claims that petitioner sets forth are not cognizable in habeas

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corpus. Instead, he alleges violations of his rights pursuant to The Americans with

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Disabilities Act, namely allegations that prison personnel refuse to give him any prison

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jobs on the basis of his physical disabilities (see, e.g., ECF No. 1-1 at 3). 42 U.S.C. §

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12182(a); see, e.g., Nettles v. Grounds, 788 F.3d 992, 1001 (9th Cir. 2015) (“[R]elief is

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available to a prisoner under the federal habeas statute only if success on the claim

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would ‘necessarily spell speedier release’ from custody.”). Therefore, the petition will be

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dismissed because the ADA claims do not state a claim for which federal habeas relief

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may be granted and because Marcelli has not exhausted his claims that his sentence

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has been miscalculated.
It is therefore ordered that petitioner’s application to proceed in forma pauperis

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(ECF No. 1) is granted.
It is further ordered that the Clerk file and electronically serve the petition (ECF

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No. 1-1) on the respondents.
It is further ordered that the Clerk add Adam Paul Laxalt, Nevada Attorney

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General, as counsel for respondents.
It is further ordered that this action is dismissed without prejudice as set forth in

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this order.
It is further ordered that a certificate of appealability is denied.

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It is further ordered that the Clerk enter judgment accordingly and close this

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case.
DATED THIS 18th day of October 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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