United States District Court, D. Nevada
P. GORDON, UNITED STATES DISTRICT JUDGE.
pro se habeas petition under 28 U.S.C. § 2254
comes before the Court for initial review pursuant to Rule 4
of the Rules Governing Section 2254 Cases in the United
States District Courts.
petitioner has filed a § 2254 petition but it does not
appear that he is currently in the custody of the state
courts pursuant to a judgment of conviction. Rather, after
review of the petition and its attachments and taking
judicial notice of the docket of the Eighth Judicial District
Court, it appears that petitioner is a pretrial detainee. As
a pretrial detainee, petitioner must file his petition
pursuant to 28 U.S.C. § 2241, not § 2254, and must
file the petition on the form for § 2241 petitions.
Accordingly, the Court will require petitioner to file an
amended petition on the § 2241 form.
following 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).
only case petitioner has initiated with the Nevada Supreme
Court is a petition for writ of mandamus, which remains
pending. Moreover, the petition for writ of
mandamus does not involve either of the claims petitioner
asserts in this case. Thus, it appears the petition in this
case is wholly unexhausted.
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
therefore must also show cause why the petition should not be
dismissed without prejudice under the Younger
accordance with the foregoing, IT IS THEREFORE ORDERED that,
as petitioner has paid the filing fee, the Clerk shall FILE
the petition (ECF No. 1-1).
FURTHER ORDERED that petitioner shall file an amended
petition on the Court's § 2241 form.
FURTHER IS ORDERED that petitioner shall clearly title the
amended petition as an amended petition by placing the word
“AMENDED” immediately above “Petition for a
Writ of Habeas Corpus” on page 1 and shall place the
docket number, 2:18-cv-01263-APG-NJK, in the space to the
right of the caption. Under Local Rule LR 15-1, the amended
petition must be complete in itself without reference to
previously filed papers. Thus, the claims and allegations
that are stated in the amended petition will be the only
matters remaining ...