United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
March 4, 2019, the court received, from petitioner, a
petition for writ of habeas corpus under 28 U.S.C. §
2254. Petitioner has been convicted of murder and sentenced
to death in a state court proceeding. The court received
petitioner's filing fee on March 12, 2019, so the Clerk
of Court will be directed to file the petition. The court has
screened the petition in accordance with Rule 4 of the Rules
Governing Habeas Corpus Under Section 2254. For reasons that
follow, the petition will be dismissed without prejudice.
raises no substantive habeas claims in his habeas petition.
Instead, he notes that he is 79 years old and expresses
frustration as to the length of time his state
post-conviction proceeding has been pending. Accordingly, he
contends that his habeas claims should be deemed exhausted
and asks this court to address his claims prior to the
conclusion of his state proceedings.
judgment of conviction was entered in August
2010. The Nevada Supreme Court affirmed the
judgment on direct appeal in October 2014. Petitioner filed a
motion for appointment of counsel and petition for
post-conviction relief in the state district court in
December 2014. Counsel was appointed in January 2015 but was
discharged in July 2016. New counsel was confirmed in August
2016. With the assistance of new counsel, petitioner filed a
supplemental petition in April 2017. Since that filing,
petitioner's state post-conviction proceedings have been
subject to numerous continuances.
general matter, this court should not entertain a petition
for a writ of habeas corpus before the petitioner's state
remedies have been exhausted. See 28 U.S.C. §
2254(b) & (c). While it may deny relief on the merits of
an unexhausted claim, the district court may not grant
federal habeas relief on the merits of a claim which has not
been exhausted in the state courts. See O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999); Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991). A federal habeas
petitioner has not exhausted a federal habeas claim if he
still has the right to raise the claim “by any
available procedure” in the state courts. 28 U.S.C.
§ 2254(c); Whaley v. Belleque, 520 F.3d 997,
1003 (9th Cir. 2008).
general rule requiring exhaustion may be excused if one of
two conditions is met: “(i) there is an absence of
available State corrective process; or (ii) circumstances
exist that render such process ineffective to protect the
rights of the applicant.” 28 U.S.C. §
2254(b)(1)(B). The court looks to four factors when
determining whether a state's delay in adjudicating a
petitioner's claim satisfies either of the §
2254(b)(1)(B) exceptions: (1) the length of the delay; (2)
the reason for the delay; (3) the defendant's assertion
of his right; and (4) prejudice to the defendant. Coe v.
Thurman, 922 F.2d 528, 531 (9th Cir.1990).
the complexities of capital cases, the length of the delay in
this case is not out of the ordinary. In addition, it appears
as if a substantial portion of the delay was caused by the
change of counsel in the state proceeding. Also, the fact
that petitioner's conviction and sentence have been
affirmed on direct appeal weighs against a finding that he
has or will be prejudiced by the delay in his post-conviction
proceeding. Cf. Coe, 922 F.2d at 532.
petitioner has not demonstrated the absence of an available
or effective state corrective process to address any claim
that his convictions and sentences violate his federal
constitutional rights, this court will decline to entertain
petitioner's claims. See Sherwood v. Tomkins,
716 F.2d 632, 634 (9th Cir. 1983) (holding that
when a petitioner's appeal of his state criminal
conviction is pending the petitioner must await the outcome
of his appeal before proceeding in federal court, even where
issue to be challenged in habeas petition has been finally
settled in state courts).
habeas petition filed in the district court after an initial
habeas petition was dismissed for failure to exhaust state
remedies is not a second or successive petition. Slack v.
McDaniel, 529 U.S. 473, 486-87 (2000). In addition, the
dismissal of the pending petition without prejudice will not
impact petitioner's compliance with the statute of
limitations because his state post-conviction proceeding is
currently pending. 28 U.S.C. § 2244(d)(2).
because the state court has not had an opportunity to rule on
the merits of all of petitioner's claims and there is no
statute of limitations or second or successive petition issue
implicated by the dismissal of the petition, the petition
should be dismissed without prejudice.
IS THEREFORE ORDERED that Clerk shall file the
petition for writ of habeas corpus (currently docketed at ECF
No. 1-1). The petition is DISMISSED without prejudice. The
Clerk shall enter judgment accordingly.
IS FURTHER ORDERED that a certificate of
appealability is DENIED.