Houston v. Royal et al

Filing 4

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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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 MATTHEW TRAVIS HOUSTON, Petitioner, 5 ORDER v. 6 7 Case No. 3:24-cv-00605-ART-CLB TERRY ROYAL, et al., Respondents. 8 9 10 On December 26, 2024, Matthew Travis Houston, an individual 11 incarcerated at Nevada’s Ely State Prison, submitted for filing an application to 12 proceed in forma pauperis (ECF No. 1), a petition for writ of habeas corpus 13 pursuant to 28 U.S.C. § 2254 (ECF No. 1-1) and an “Objection to the 14 Impressment of Plaintiff Requiring Mr. Houston to File an ‘Application to Chief 15 District Judge Seeking Leave to File’” (ECF No. 1-2) (hereafter “Objection to 16 Order”). 17 Based on the information in the application to proceed in forma pauperis, 18 the Court will grant that application. Houston will not be required to pay the 19 filing fee for this action. 20 However, the Court screens Houston’s petition and determines that it 21 appears to be unexhausted in state court. The Court will grant Houston an 22 opportunity to show cause why this action should not be dismissed on that 23 ground. 24 Rule 4 requires a federal district court to examine a habeas petition and 25 order a response unless it “plainly appears” that the petitioner is not entitled to 26 relief. This rule allows courts to screen and dismiss petitions that are patently 27 frivolous, vague, conclusory, palpably incredible, false, or plagued by procedural 28 1 1 defects. See Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Hendricks 2 v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). 3 Houston challenges a conviction and sentence imposed by Nevada’s Eighth 4 Judicial District Court (Clark County). On December 8, 2021, the state court 5 entered a judgment of conviction for aggravated stalking and sentenced Houston 6 to 24 to 96 months. The Nevada Supreme Court dismissed Houston’s appeal for 7 lack of jurisdiction based on Houston’s untimely notice of appeal. Houston v. 8 State of Nevada, Case No. 84281. According to Houston, on May 26, 2022, he 9 filed a petition for writ of habeas corpus in the state district court and has 10 appealed from the denial of relief in that case. (Petition, ECF No. 1-1, p. 1.) 11 Houston states that he presented all the claims in his federal petition to the state 12 supreme court. (Id.) It is unclear from Houston’s petition, however, whether the 13 appeal in his state post-conviction habeas action has been completed, or, for 14 that matter, whether his direct appeal has been completed. Houston states: “The 15 briefing schedule for the direct appeal was reinstated.” (Id.) Houston states that 16 he has a case currently pending in the Nevada Supreme Court. (Id. at 2.) 17 A federal court will not grant a state prisoner’s petition for habeas relief 18 unless the petitioner has exhausted his available state remedies for all claims 19 raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner 20 must give the state courts a fair opportunity to act on each of his claims before 21 he presents those claims in a federal habeas petition. O'Sullivan v. Boerckel, 526 22 U.S. 838, 844 (1999). A claim remains unexhausted until the petitioner has given 23 the highest available state court the opportunity to consider the claim through 24 direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 25 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 26 1981). To satisfy the exhaustion requirement, a claim must have been raised 27 through one complete round of either direct appeal or collateral proceedings to 28 the highest state court level of review available. O’Sullivan v. Boerckel, 526 U.S. 2 1 838, 844–45 (1999); Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) 2 (en banc). 3 In January 2023, Houston filed a federal habeas petition in this court, and 4 it was dismissed without prejudice as unexhausted. Houston v. Bean, Case No. 5 2:23-cv-00031-RFB-DJA, ECF No. 19. The Ninth Circuit Court of Appeals denied 6 a certificate of appealability. Id. at ECF No. 27. Houston filed another federal 7 habeas petition in this court in August 2023. Houston v. Williams, 2:23-cv- 8 01210-APG-DJA. That case, too, was dismissed without prejudice as 9 unexhausted. Id. at ECF No. 3. And, again, the Ninth Circuit Court of Appeals 10 denied a certificate of appealability. Id. at ECF No. 24. As in those two previously 11 filed federal habeas petitions, Houston’s claims in this action appear to be 12 unexhausted. (See Petition, ECF No. 1-1.) 13 The Court will grant Houston an opportunity to make a showing why this 14 case should not be dismissed without prejudice as unexhausted. To do so, 15 Houston must explain, or, better, submit documents showing, the status of the 16 appeal in his state habeas action and the status of his direct appeal; he must 17 show that those appeals have been completed, giving the highest available state 18 appellate court the opportunity to consider and rule on all the claims he asserts 19 in this case. The best way to do this would be by submitting copies of state 20 appellate court rulings showing as much. 21 If Houston does not make a colorable showing that this case should not 22 be dismissed, or if he fails to respond to this order in the time allowed, this action 23 will be dismissed without prejudice as unexhausted. 24 It is therefore ordered that Petitioner’s Application to Proceed in Forma 25 Pauperis (ECF No. 1) is granted. Petitioner will not be required to pay the filing 26 fee for this action. 27 The Clerk of the Court is directed to separately file Petitioner’s Petition for 28 Writ of Habeas Corpus (ECF No. 1-1) and Petitioner’s “Objection to the 3 1 Impressment of Plaintiff Requiring Mr. Houston to File an ‘Application to Chief 2 District Judge Seeking Leave to File’” (ECF No. 1-2). 3 It is further ordered that Petitioner will have 90 days from the date this 4 order is entered to file a “Response to Order to Show Cause,” showing why this 5 action should not be dismissed for the reasons stated in this order. 6 DATED THIS 28th day of January, 2025. 7 8 9 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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