United States District Court, D. Nevada
ORDER VACATING DISMISSAL ORDER, GRANTING APPLICATION
TO PROCEED IN FORMA PAUPERIS, AND DISMISSING AND RE-CLOSING
CASE [ECF NO. 10]
JENNIFER A. DORSEY, UNITED STATES DISTRICT JUDGE
January 20, 2017, I dismissed without prejudice this §
2254 action brought by Nevada state pre-trial detainee Shelly
Newton because she failed to submit a completed application
to proceed in forma pauperis or pay the $5.00 filing
fee. Rather than filing her petition and an IFP application
in a new action as instructed by my order, Newton filed an
application to proceed in forma pauperis in this
closed case. It appears from Newton's application and
supporting documentation that she is was-and remains-unable
to pay the filing fee to initiate this case. In the interests
of judicial economy, I vacate my January 20, 2017, dismissal
order, re-open this case to consider Newton's IFP
application, grant Newton pauper status, and screen her
petition under Habeas Rule 4.
Shelly Newton is currently incarcerated at the Clark County
Detention Center awaiting trial on burglary, forgery, and
related charges, and her trial is currently set to begin on
May 30, 2017, in Nevada's Eighth Judicial District
Court. In the petition, Newton generally
challenges her August 2015 arrest and the resulting
state-court charges. She first explains that she was arrested
at a Wal-Mart after she was questioned and detained by a
security officer. She states that she was not granted
release on her own recognizance but was instead granted $5,
000 bail, which she posted. She was later remanded to custody
after she arrived late to a court hearing and additional
charges were added against her. Though Newton does not articulate
any specific claims, it appears that she believes that she
was unlawfully detained, the evidence is insufficient to
support the charges against her, and that she should be
released on her own recognizance pending trial.
plainly appears from the face of Newton's petition that
she is not entitled to federal habeas relief because her
claims are barred by Younger v. Harris, which
requires a federal court to abstain from interfering with
pending state criminal prosecutions absent extraordinary
circumstances.Younger abstention is appropriate
when: (1) state judicial proceedings are pending; (2) the
state proceedings involve important state interests; and (3)
the state proceedings afford adequate opportunity to raise
the constitutional issue.
light of Newton's impending criminal trial in state
court, all of the requirements for Younger
abstention are present, and I do not find that there are
extraordinary circumstances warranting federal-court
intervention here. I therefore dismiss Newton's petition
and re-close this action. And because reasonable jurists would
not find my dismissal of Newton's petition based on
Younger abstention debatable or wrong, I decline to
issue a certificate of appealability.
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the Clerk of
Court is directed to RE-OPEN this case and VACATE the January
20, 2017, dismissal order [ECF No. 4].
FURTHER ORDERED that Newton's application to proceed
in forma pauperis [ECF No. 10] is GRANTED; and
Newton's petition [ECF No. 1] is DENIED without prejudice
to her ability to bring her claims and arguments at the
proper time in the proper forum.
FURTHER ORDERED that a Certificate of Appealability is
Clerk of Court is directed to RE-CLOSE THIS CASE.
I take judicial notice of this website. Daniels-Hall v.
Nat'l Educ. Ass'n, 629 F.3d 992, 998-99 (9th
Cir. 2010) (courts may take ...