Houston v. Royal et al
Filing
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ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk of the Court is directed to separately file Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1 -1) and Petitioner's Objection to t he Impressment of Plaintiff Requiring Mr. Houston to File an Application to Chief District Judge Seeking Leave to File (ECF No. 1-2). It is further ordered that Petitioner will have 90 days from the date this order is entered to file a Response to Order to Show Cause, showing why this action should not be dismissed for the reasons stated in this order. Show Cause Response due by 4/28/2025. Signed by District Judge Anne R. Traum on 1/28/2025. (For Distribution by law library.)(Copies have been distributed pursuant to the NEF - GA)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MATTHEW TRAVIS HOUSTON,
Petitioner,
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ORDER
v.
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Case No. 3:24-cv-00605-ART-CLB
TERRY ROYAL, et al.,
Respondents.
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On December 26, 2024, Matthew Travis Houston, an individual
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incarcerated at Nevada’s Ely State Prison, submitted for filing an application to
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proceed in forma pauperis (ECF No. 1), a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254 (ECF No. 1-1) and an “Objection to the
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Impressment of Plaintiff Requiring Mr. Houston to File an ‘Application to Chief
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District Judge Seeking Leave to File’” (ECF No. 1-2) (hereafter “Objection to
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Order”).
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Based on the information in the application to proceed in forma pauperis,
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the Court will grant that application. Houston will not be required to pay the
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filing fee for this action.
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However, the Court screens Houston’s petition and determines that it
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appears to be unexhausted in state court. The Court will grant Houston an
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opportunity to show cause why this action should not be dismissed on that
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ground.
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Rule 4 requires a federal district court to examine a habeas petition and
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order a response unless it “plainly appears” that the petitioner is not entitled to
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relief. This rule allows courts to screen and dismiss petitions that are patently
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frivolous, vague, conclusory, palpably incredible, false, or plagued by procedural
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defects. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Hendricks
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v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases).
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Houston challenges a conviction and sentence imposed by Nevada’s Eighth
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Judicial District Court (Clark County). On December 8, 2021, the state court
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entered a judgment of conviction for aggravated stalking and sentenced Houston
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to 24 to 96 months. The Nevada Supreme Court dismissed Houston’s appeal for
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lack of jurisdiction based on Houston’s untimely notice of appeal. Houston v.
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State of Nevada, Case No. 84281. According to Houston, on May 26, 2022, he
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filed a petition for writ of habeas corpus in the state district court and has
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appealed from the denial of relief in that case. (Petition, ECF No. 1-1, p. 1.)
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Houston states that he presented all the claims in his federal petition to the state
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supreme court. (Id.) It is unclear from Houston’s petition, however, whether the
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appeal in his state post-conviction habeas action has been completed, or, for
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that matter, whether his direct appeal has been completed. Houston states: “The
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briefing schedule for the direct appeal was reinstated.” (Id.) Houston states that
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he has a case currently pending in the Nevada Supreme Court. (Id. at 2.)
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A federal court will not grant a state prisoner’s petition for habeas relief
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unless the petitioner has exhausted his available state remedies for all claims
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raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner
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must give the state courts a fair opportunity to act on each of his claims before
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he presents those claims in a federal habeas petition. O'Sullivan v. Boerckel, 526
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U.S. 838, 844 (1999). A claim remains unexhausted until the petitioner has given
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the highest available state court the opportunity to consider the claim through
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direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d
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896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir.
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1981). To satisfy the exhaustion requirement, a claim must have been raised
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through one complete round of either direct appeal or collateral proceedings to
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the highest state court level of review available. O’Sullivan v. Boerckel, 526 U.S.
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838, 844–45 (1999); Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003)
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(en banc).
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In January 2023, Houston filed a federal habeas petition in this court, and
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it was dismissed without prejudice as unexhausted. Houston v. Bean, Case No.
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2:23-cv-00031-RFB-DJA, ECF No. 19. The Ninth Circuit Court of Appeals denied
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a certificate of appealability. Id. at ECF No. 27. Houston filed another federal
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habeas petition in this court in August 2023. Houston v. Williams, 2:23-cv-
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01210-APG-DJA. That case, too, was dismissed without prejudice as
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unexhausted. Id. at ECF No. 3. And, again, the Ninth Circuit Court of Appeals
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denied a certificate of appealability. Id. at ECF No. 24. As in those two previously
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filed federal habeas petitions, Houston’s claims in this action appear to be
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unexhausted. (See Petition, ECF No. 1-1.)
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The Court will grant Houston an opportunity to make a showing why this
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case should not be dismissed without prejudice as unexhausted. To do so,
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Houston must explain, or, better, submit documents showing, the status of the
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appeal in his state habeas action and the status of his direct appeal; he must
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show that those appeals have been completed, giving the highest available state
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appellate court the opportunity to consider and rule on all the claims he asserts
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in this case. The best way to do this would be by submitting copies of state
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appellate court rulings showing as much.
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If Houston does not make a colorable showing that this case should not
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be dismissed, or if he fails to respond to this order in the time allowed, this action
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will be dismissed without prejudice as unexhausted.
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It is therefore ordered that Petitioner’s Application to Proceed in Forma
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Pauperis (ECF No. 1) is granted. Petitioner will not be required to pay the filing
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fee for this action.
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The Clerk of the Court is directed to separately file Petitioner’s Petition for
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Writ of Habeas Corpus (ECF No. 1-1) and Petitioner’s “Objection to the
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Impressment of Plaintiff Requiring Mr. Houston to File an ‘Application to Chief
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District Judge Seeking Leave to File’” (ECF No. 1-2).
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It is further ordered that Petitioner will have 90 days from the date this
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order is entered to file a “Response to Order to Show Cause,” showing why this
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action should not be dismissed for the reasons stated in this order.
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DATED THIS 28th day of January, 2025.
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ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE
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