United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
case is a petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, by Charles Newton, a Nevada prisoner.
On December 28, 2016, Newton filed an application to proceed
in forma pauperis and a petition for writ of habeas
corpus (ECF Nos. 1, 1-1).
application to proceed in forma pauperis (ECF No. 1)
is not on the form required by this court. It appears that
Newton has used a form intended for use to apply for in
forma pauperis status in the Nevada Supreme Court. An
application to proceed in forma pauperis in this
court must generally be made on the form provided by this
court. See LSR 1-1. However, Newton has properly
attached to his in forma pauperis application a
financial certificate in the correct form and fully completed
and signed by a prison officer. In light of the information
provided in the financial certificate, the Court will grant
Newton's application to proceed in forma
pauperis and proceed to screen Newton's petition.
Court has examined Newton's petition for a writ of habeas
corpus, pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts. Newton does
not state a potentially meritorious habeas corpus claim, as
it is plain, from Newton's petition and the documents
Newton attached to it, that Newton has not exhausted either
of his two claims in the Nevada state courts.
federal court may not grant habeas corpus relief on a claim
not exhausted in state court. 28 U.S.C. § 2254(b). The
exhaustion doctrine is based on the policy of federal-state
comity, and is intended to allow state courts the initial
opportunity to correct constitutional deprivations. See
Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a
claim, a petitioner must fairly present the claim to the
highest state court, and must give that court the opportunity
to address and resolve it. See Duncan v. Henry, 513
U.S. 364, 365 (1995) (per curiam); Keeney v.
Tamayo-Reyes, 504 U.S. 1, 10 (1992). A claim is fairly
presented to the state's highest court if, before that
court, the petitioner describes the operative facts and legal
theory upon which the claim is based. See Anderson v.
Harless, 459 U.S. 4, 6 (1982) (per curiam);
Picard, 404 U.S. at 275; Batchelor v. Cupp,
693 F.2d 859, 862 (9th Cir. 1982).
case, Newton's petition indicates that he seeks to
challenge a state-court judgment of conviction entered on
October 28, 2015. Petition for Writ of Habeas Corpus, p. 1,
¶ 2. Newton indicates in his petition that he appealed
from that conviction, but that the appeal is
“ongoing.” Id., ¶ 3. Later in his
petition, with respect to each of his two claims, Newton
concedes that neither claim was raised on a direct appeal.
Id. at pp. 4, 6. Newton suggests that he believes,
incorrectly, that his filing of his petition in this federal
court is his direct appeal. See id.
indicates that he filed a habeas petition in state court, but
leaves blank the part of the form regarding the resolution of
that petition and the appeal regarding it. Id.,
¶ 4. Later, with respect to each of his claims, Newton
concedes that neither claim was raised on an appeal regarding
his state habeas petition. Id. at pp. 4, 6. And,
here again, Newton suggests that he believes, incorrectly,
that this action in federal court is the appeal regarding his
state-court habeas petition. See id.
has attached to his habeas petition a copy of court minutes
from the state court action in which he was convicted (Case
No. C-15-308535-1 in Nevada's Eighth Judicial District
Court). There is no indication in those minutes that Newton
appealed from either the judgment of conviction or the ruling
on his state habeas petition.
is clear that Newton has not presented in his petition in
this case any claim on which federal habeas corups relief
could be granted, and that Newton has not exhausted in state
court any claim regarding the conviction he seeks to
challenge, this action will be dismissed without prejudice.
THEREFORE ORDERED that petitioner's application to
proceed in forma pauperis (ECF No. 1) is GRANTED.
The petitioner is not required to pay the filing fee for this
FURTHER ORDERED that the clerk of the court shall separately
file the petition for writ of habeas corpus, which is
currently attached to petitioner's application to proceed
in forma pauperis, at ECF No. 1-1.
FURTHER ORDERED that this action is dismissed without
prejudice. The petitioner is denied a certificate of
FURTHER ORDERED that the clerk of the court shall enter
FURTHER ORDERED that the clerk of the court shall add Adam
Paul Laxalt, Attorney General of the State of Nevada, to the
docket for this case, as counsel for respondents. The clerk
of court shall serve respondents with a copy of the habeas
corpus petition and a ...