United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE.
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
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. Petitioner has yet to be sentenced and
judgment of conviction entered, and thus petitioner is a
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.
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.
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
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). 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).
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
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.
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
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.
therefore must also show cause why the petition should not be
dismissed without prejudice ...