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Scott v. State

United States District Court, D. Nevada

March 27, 2018

ERIC RYAN SCOTT, Petitioner,
v.
STATE OF NEVADA, Respondent.

          ORDER

          JAMES C. MAHAN UNITED STATES DISTRICT JUDGE.

         This habeas matter comes before the court on consideration of petitioner's application to proceed in forma pauperis (ECF No. 1) and for initial review pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254.

         As an initial matter, the petition is denominated a petition for writ of habeas corpus, but it is not on any court form and does not identify whether it is filed pursuant to 28 U.S.C. § 2254 or § 2241. It asserts several challenges, including double jeopardy, to petitioner's state court trial on charges of attempt murder with a deadly weapon, battery with a deadly weapon with substantial bodily harm, and domestic battery, which occurred from February 5, 2017, to February 13, 2017. (ECF No. 1-1 at 3). Taking judicial notice of the docket of the Eighth Judicial District Court, the court determines that the criminal proceedings challenged in this case are ongoing.[1] Petitioner has yet to be sentenced and judgment of conviction entered, and thus petitioner is a pretrial detainee.[2]

         As petitioner's criminal proceedings are ongoing and petitioner is a pretrial detainee, the petition is properly construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

         After considering the application for pauper status, the court finds that petitioner cannot pay the filing fee. The application for in forma pauperis status will therefore be granted. Petitioner will not be required to pay the filing fee.

         Following upon initial review, it appears, inter alia, that the petition is wholly unexhausted and is also barred under the abstention doctrine in Younger v. Harris, 401 U.S. 37 (1971). Petitioner must therefore show cause in writing why this action should not be dismissed without prejudice.

         Exhaustion

         A state criminal defendant seeking to restrain pending state proceedings via a federal writ of habeas corpus must first exhaust his state court remedies before presenting his 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 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).

         Review of the Supreme Court of Nevada's docket indicates that the only thing petitioner has filed with that court is a direct appeal, which will not become effective until petitioner's judgment of conviction has been entered. Petitioner has filed no other appeal or petition in that court. Thus, it appears the petition in this case is wholly unexhausted.

         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 he has presented each federal claim in this matter to the state courts through to the Supreme Court of Nevada.

         Younger Abstention

         As a general rule, even when the claims in a petition have been fully exhausted in the state courts, a federal court will not entertain a habeas petition seeking intervention in a pending state criminal proceeding, absent special circumstances. See, e.g., Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); Carden, 626 F.2d at 83-85; Davidson v. Klinger, 411 F.2d 746 (9th Cir. 1969). This rule of restraint ultimately is grounded in principles of comity that flow from the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971). Under the Younger abstention doctrine, federal courts may not interfere with pending state criminal proceedings absent extraordinary circumstances.

         While the court recognizes that an exception to Younger abstention exists where a pretrial detainee is seeking to restrain an allegedly unconstitutional retrial on the grounds of double jeopardy, Mannes v. Gillespie, 967 F.2d 1310, 1312 (9th Cir. 1992), that exception does not apply where, as here, the retrial has already taken place, see Hill v. Plummer, 27 Fed. App'x 723, 724 (9th Cir. 2001). Furthermore, even if this exception applied, the petitioner would still have to exhaust his state court remedies before the federal court could consider his petition. In addition, the exception would apply only to the double jeopardy claim and would not apply to any of the other claims asserted in the petition, such as petitioner's claims of prosecutorial misconduct, ineffective assistance of counsel, and insufficient evidence.

         Petitioner therefore must also show cause why the petition should not be dismissed without prejudice ...


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