Bellon v. Baker et al

Filing 3

ORDERED Clerk shall e-serve the petition (ECF No. 1 ) on the respondents, for informational purposes only. (E-service to AG via NEF regeneration 4/11/2018.) Clerk shall add AG as counsel for respondents. This action is dismissed without prejudice as set forth in this order. A certificate of appealability is denied. Clerk shall enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 4/11/2018. (Copies have been distributed pursuant to the NEF - DRM)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ROBERT LINZY BELLON, Case No. 3:18-cv-00081-MMD-WGC 10 Petitioner, ORDER v. 11 RENEE BAKER, et al., 12 Respondents. 13 14 Petitioner Robert Linzy Bellon has submitted a pro se habeas corpus petition 15 challenging the computation of his sentence and has paid the filing fee (ECF No. 1). The 16 petition will be dismissed without prejudice because Bellon has not presented his claims 17 to the Nevada Supreme Court. 18 A federal court will not grant a state prisoner’s petition for habeas relief until the 19 prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy, 20 455 U.S. 509, 522 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a 21 fair opportunity to act on each of his claims before he presents those claims in a federal 22 habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. 23 Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has 24 given the highest available state court the opportunity to consider the claim through direct 25 appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 26 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). 27 /// 28 /// 1 1 Here, petitioner has attached some documents from his state postconviction 2 proceedings. The court also takes notice of the dockets of the Nevada Supreme Court 3 and the Eighth Judicial District Court. Taken together, they reflect that the state district 4 court recently denied Bellon’s postconviction petition on March 21, 2018. (See ECF No. 5 1 at 6; Eighth Judicial District Court Case No. A-16-746829-W; see also Nevada Supreme 6 Court Case No. 74067).1 The resolution of Bellon’s state postconviction petition could 7 render a federal habeas petition moot. Accordingly, this federal petition shall be dismissed 8 without prejudice to petitioner filing a new federal habeas petition, in a new case with a 9 new case number and a new, completed application to proceed in forma pauperis with 10 the required financial information or the $5.00 filing fee. 11 12 It is therefore ordered that the Clerk will electronically serve the petition (ECF No. 1) on the respondents, for informational purposes only. 13 14 It is further ordered that the Clerk will add Adam Paul Laxalt, Nevada Attorney General, as counsel for respondents. 15 16 It is further ordered that this action is dismissed without prejudice as set forth in this order. 17 It is further ordered that a certificate of appealability is denied. 18 It is further ordered that the Clerk shall enter judgment accordingly and close this 19 20 case. DATED THIS 11th day of April 2018. 21 22 23 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 24 25 26 27 28 1Nevada Supreme Court Case No. 74067 reflects that Bellon filed an appeal of a purported decision denying his postconviction habeas petition on September 15, 2017. However, the Nevada Supreme Court dismissed the appeal for lack of jurisdiction because no decision, oral or written, had been made on the petition when Bellon filed the appeal. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?