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Camacho v. Lombardo

United States District Court, D. Nevada

July 24, 2018

JOE LOMBARDO, Respondent.



         This 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.

         Initially, 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.

         Second, 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 prejudice.[1]


         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).[2] 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).

         The only case petitioner has initiated with the Nevada Supreme Court is a petition for writ of mandamus, which remains pending.[3] 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.

         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.

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

         In 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).

         IT IS FURTHER ORDERED that petitioner shall file an amended petition on the Court's § 2241 form.

         IT 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 ...

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