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Newton v. Lombardo

United States District Court, D. Nevada

December 19, 2017

SHELLY J. NEWTON, Petitioner,
v.
JOSEPH LOMBARDO, Respondent.

          ORDER

          KENT J. DAWSON, UNITED STATES DISTRICT JUDGE.

         This habeas action brought under 28 U.S.C. § 2241 by a then Nevada state detainee comes before the Court on a sua sponte inquiry as to whether the petition should be dismissed as wholly unexhausted and further under the abstention doctrine in Younger v. Harris, 401 U.S. 37 (1971). This order follows upon the Court's earlier show-cause order (ECF No. 4) and what appears to be petitioner's response thereto (ECF No. 6, at 13-14) filed with the amended petition that also was directed to be filed by the show-cause order.[1]

         Background

         The basic procedural history summarized in the show-cause order is not disputed by apposite and cogent argument in the response.

         Petitioner Shelly Newton seeks the dismissal of two pending state criminal cases and her release from her then detention.

         In No. 16C318737, petitioner was charged with escape by a felony prisoner. She was found guilty by a jury verdict in that case on October 18, 2017. Subsequent to the show-cause order in this case, petitioner was sentenced on December 7, 2017, to a suspended sentence of 19 to 48 months with probation for an indeterminate period not to exceed three years. A judgment of conviction had not been entered as yet at the time of this Court's most recent review during the preparation of this order.[2]

         In No. 16C318889, petitioner was charged with escape from electronic supervision. Petitioner pled no contest to the charge in an amended information on December 13, 2017, and was sentenced to time served. A judgment of conviction had not been entered as yet at the time of this Court's most recent review during the preparation of this order.

         Petitioner is represented by the public defender in both cases.

         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 petition remains pending for consideration by the state appellate courts.

         The online inmate locator for the Clark County Detention Center, which is the last institutional address given by petitioner, does not reflect that petitioner currently is in custody at that facility.

         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).[3]

         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 ...


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