Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Newton v. State

United States District Court, D. Nevada

November 21, 2017

SHELLY J. NEWTON, Petitioner,
v.
STATE OF NEVADA, et al., Respondents.

          ORDER

          KENT J. DAWSON UNITED STATES DISTRICT JUDGE.

         This 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 pauper application.

         On 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.

         Background

         Petitioner 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.[1]

         The 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 appellate courts.

         Discussion

         Exhaustion

         A 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).[2]

         To 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).

         In the 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.

         Moreover, 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).

         Accordingly, 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.

         Younger ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.