United States District Court, D. Nevada
SHELLY J. NEWTON, Petitioner,
JOSEPH LOMBARDO, Respondent.
J. DAWSON, UNITED STATES DISTRICT JUDGE.
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.
basic procedural history summarized in the show-cause order
is not disputed by apposite and cogent argument in the
Shelly Newton seeks the dismissal of two pending state
criminal cases and her release from her then detention.
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
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.
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 petition
remains pending for consideration by the state appellate
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
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 ...