United States District Court, D. Nevada
SHELLY J. NEWTON, Petitioner,
STATE OF NEVADA, et al., Respondents.
J. DAWSON UNITED STATES DISTRICT JUDGE.
habeas action under 28 U.S.C. § 2241 by a Nevada state
pretrial detainee comes before the Court on petitioner's
application (ECF No. 1) to proceed in forma pauperis
and for initial review. The Court finds that petitioner is
unable to pay the filing fee and therefore will grant the
initial review, it appears, inter alia, that the
petition is wholly unexhausted and that the petition also is
barred under the abstention doctrine in Younger v.
Harris, 401 U.S. 37 (1971). Petitioner therefore must
show cause in writing why the petition should not be
dismissed without prejudice.
Shelly Newton seeks the dismissal of two pending state
criminal cases and her release from detention. In No.
16C318737, petitioner is charged with escape by a felony
prisoner. She was found guilty by a jury verdict in that case
on October 18, 2017; and sentencing is set for December 7,
2017. In No. 16C318889, petitioner is charged with escape
from electronic supervision. A jury trial is scheduled in
that matter for January 29, 2018. Petitioner is represented
by the public defender in both cases.
online records of the state appellate courts reflect only one
proceeding brought by petitioner. Newton filed a proper
person original petition for a writ of mandamus in the state
supreme court on November 16, 2017, only days before the
filing of this action, under No. 74464. She seeks a writ of
mandamus directing the state district court to dismiss the
pending cases and release her from custody. The only recently
filed petition remains pending for consideration by the state
criminal defendant seeking to restrain pending state
proceedings via a federal writ of habeas corpus first must
exhaust her state court remedies before presenting her
constitutional claims to the federal courts. The exhaustion
rule applicable to requests for federal pre-conviction
intervention in pending state criminal proceedings is
grounded in principles of judicial restraint that predate and
operate independently of the statutory exhaustion requirement
in § 2254(b)(1). See, e.g., Braden v.
30th Judicial Circuit Court of Kentucky, 410
U.S. 484, 489-92 (1973); Carden v. Montana, 626 F.2d
82, 83 (9th Cir. 1980).
satisfy the exhaustion requirement, the claim must have been
fairly presented to the state courts completely through to
the highest court available, in this case the state supreme
court. E.g., Peterson v. Lampert, 319 F.3d 1153,
1156 (9th Cir. 2003)(en banc); Vang
v. Nevada, 329 F.3d 1069, 1075 (9th Cir.
2003). In the state courts, the petitioner must refer to the
specific federal constitutional guarantee and must also state
the facts that entitle the petitioner to relief on the
federal constitutional claim. E.g., Shumway v.
Payne, 223 F.3d 983, 987 (9th Cir. 2000).
That is, fair presentation requires that the petitioner
present the state courts with both the operative facts and
the federal legal theory upon which the claim is based.
E.g., Castillo v. McFadden, 399 F.3d 993, 999
(9th Cir. 2005). The exhaustion requirement
insures that the state courts, as a matter of federal-state
comity, will have the first opportunity to pass upon and
correct alleged violations of federal constitutional
guarantees. See, e.g., Coleman v. Thompson, 501 U.S.
722, 731 (1991).
present case, petitioner filed a proceeding in the state
appellate courts only days prior to the filing of this
matter; and that proceeding remains under consideration at
this time. It therefore would appear that petitioner has not
exhausted any claims, regardless of the content of his
filings in the state appellate courts.
an original petition for relief filed in the state appellate
courts generally does not exhaust claims asserted therein.
State appellate courts are not required to consider claims
presented in such a petition on the merits, see, e.g., Ex
parte Hawk, 321 U.S. 114 (1944), and they generally do
not do so. Where the state appellate courts decline to
exercise original jurisdiction over such a petition and do
not decide the merits of any claim raised therein, the
proceeding exhausts no claims. See, e.g., Pitchess v.
Davis, 421 U.S. 482, 488 (1975); Ex parte Hawk,
321 U.S. at 116; Sweet v. Cupp, 640 F.2d 233, 238
(9th Cir. 1981). See also Castille v. Peoples, 489
U.S. 346, 351 (1989)(presenting a claim in a procedural
context in which the merits of the claim will not be
considered, or will be considered only in special
circumstances, does not constitute fair presentation of the
claim); Roettgen v. Copeland, 33 F.3d 36, 38 (9th
Cir. 1994)(applying the rule to the filing of an original
extraordinary petition in a state high court).
petitioner must show cause why the federal petition should
not be dismissed for lack of exhaustion. In order to
establish exhaustion of all federal claims presented herein,
petitioner must demonstrate that: (1) each federal claim in
this matter was presented to the state courts through to the
Supreme Court of Nevada; (2) the proceedings in the state
appellate courts have concluded by the issuance of a
remittitur or notice in lieu of a remittitur; and (3) the
state appellate courts addressed the merits of the claims if
the claims were presented in an original petition or other
procedural context in which the merits would be considered
only in special circumstances. In this regard, petitioner
will be required to attach copies with her show-cause
response of all of her filings in the state appellate courts
upon which she relies to establish exhaustion, along with any
written orders thereon.