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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ANTHONY MICHAEL MARCELLI, 10 Case No. 3:16-cv-00503-MMD-WGC Petitioner, ORDER v. 11 ISIDRO BACA, et al., 12 Respondents. 13 14 Petitioner Anthony Michael Marcelli has submitted a pro se habeas corpus 15 petition (ECF No. 1-1). His application to proceed in forma pauperis (ECF No. 1) will be 16 granted. The petition will be dismissed without prejudice because several claims are not 17 cognizable in federal habeas corpus and, to the extent that petitioner includes any 18 cognizable claims, they are wholly unexhausted. 19 First, a federal court will not grant a state prisoner’s petition for habeas relief until 20 the prisoner has exhausted his available state remedies for all claims raised. Rose v. 21 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state 22 courts a fair opportunity to act on each of his claims before he presents those claims in 23 a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also 24 Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the 25 petitioner has given the highest available state court the opportunity to consider the 26 claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 27 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 28 1981). Here, Marcelli includes a claim that the Nevada Department of Corrections 1 refuses to properly apply the state statutory scheme that provides for good-time credits, 2 and therefore, is improperly calculating his sentence. He acknowledges on the face of 3 his petition that he has not exhausted any claims in the state courts (see, e.g., ECF No. 4 1-1 at 4). Marcelli states that this is because he is not challenging the fact of his 5 conviction. (Id.) However, a challenge to the calculation of his sentence may impact the 6 date of his release from custody, which may implicate his rights under 28 U.S.C. § 7 2254. Marcelli must first present this claim to the Nevada state courts. 8 The remaining claims that petitioner sets forth are not cognizable in habeas 9 corpus. Instead, he alleges violations of his rights pursuant to The Americans with 10 Disabilities Act, namely allegations that prison personnel refuse to give him any prison 11 jobs on the basis of his physical disabilities (see, e.g., ECF No. 1-1 at 3). 42 U.S.C. § 12 12182(a); see, e.g., Nettles v. Grounds, 788 F.3d 992, 1001 (9th Cir. 2015) (“[R]elief is 13 available to a prisoner under the federal habeas statute only if success on the claim 14 would ‘necessarily spell speedier release’ from custody.”). Therefore, the petition will be 15 dismissed because the ADA claims do not state a claim for which federal habeas relief 16 may be granted and because Marcelli has not exhausted his claims that his sentence 17 has been miscalculated. It is therefore ordered that petitioner’s application to proceed in forma pauperis 18 19 (ECF No. 1) is granted. It is further ordered that the Clerk file and electronically serve the petition (ECF 20 21 No. 1-1) on the respondents. It is further ordered that the Clerk add Adam Paul Laxalt, Nevada Attorney 22 23 General, as counsel for respondents. It is further ordered that this action is dismissed without prejudice as set forth in 24 25 this order. It is further ordered that a certificate of appealability is denied. 26 27 /// 28 /// 2 It is further ordered that the Clerk enter judgment accordingly and close this 1 2 3 case. DATED THIS 18th day of October 2016. 4 5 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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