United States District Court, D. Nevada
ORDER ECF No. 1
P. GORDON UNITED STATES DISTRICT JUDGE
matter is before me for screening under the Rules Governing
Section 2254 Cases in the United States District
Courts. For the reasons discussed below, I order
Petitioner Alfredo Celestino Labrada to show cause within 30
days as to why I should not dismiss this action without
prejudice for a failure to exhaust his claims in state court.
He must also resolve the filing fee and file an amended
Petition for Writ of Habeas Corpus (ECF No. 1-1) indicates
that he is a pro se state prisoner challenging a
conviction and sentence imposed by the Eighth Judicial
District Court of the State of Nevada. See State v.
Labrada, C-15-311538-1. He was convicted on two counts:
attempted lewdness with a child under the age of 14 and
coercion sexually motivated. Sentencing recently took place
on August 6, 2019. Labrada represents that he has not filed
an appeal to the Nevada appellate courts regarding his
to Show Cause Why the Petition Should Not be
to Habeas Rule 4, the assigned judge must examine the habeas
petition and order a response unless it “plainly
appears” that the petitioner is not entitled to relief.
Habeas Rule 4; Valdez v. Montgomery, 918 F.3d 687,
693 (9th Cir. 2019). This rule allows courts to screen and
dismiss petitions that are patently frivolous, vague,
conclusory, palpably incredible, or false. Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting
cases). The court may also dismiss claims at screening for
procedural defects. Boyd v. Thompson, 147 F.3d 1124,
1128 (9th Cir. 1998).
appears that Labrada's petition is wholly unexhausted in
state court and is subject to dismissal without prejudice.
Pursuant to 28 U.S.C. § 2254(b)(1)(A), a state prisoner
seeking habeas corpus relief in federal court must first
exhaust available state court remedies before presenting his
claims in the federal court. The exhaustion requirement
ensures 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. Coleman v. Thompson, 501 U.S. 722, 731
(1991). To satisfy the exhaustion requirement, a petitioner
must fully and fairly present his claims to the state courts.
Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir.
2014). A claim must be raised through one complete round of
either direct appeal or collateral proceedings to the highest
state court level of review available. O'Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999); Peterson v.
Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc).
In the state courts, the petitioner must refer to the
specific federal constitutional guarantee he believes has
been violated, and he must state the facts that he claims
entitle him to relief on the federal constitutional claim.
Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000).
Fair presentation requires the petitioner to present the
state courts with both the operative facts and the federal
legal theory upon which the claim is based. Castillo v.
McFadden, 399 F.3d 993, 999 (9th Cir. 2005).
was sentenced by the state court less than a month ago. The
petition concedes that he has not filed a direct appeal or
initiated a state habeas action. Thus, it is virtually
certain that he has not exhausted any federal constitutional
claim relative to his judgment of conviction, and this
federal habeas action is premature. Accordingly, Labrada will
be required to show cause why this action should not be
dismissed because of his failure to exhaust his claims in
Filing Fee and Required Amendment
addition to the lack of exhaustion, multiple procedural
errors are apparent.
Labrada has not properly commenced this habeas action by
either paying the standard filing fee or filing a complete
application for leave to proceed in forma pauperis
(“IFP”). He submitted a hand-written petition
under 28 U.S.C. § 2241, but he did not pay the $5 filing
fee or submit an IFP application for incarcerated litigants.
LSR 1-1, LSR 1-2; 28 U.S.C. § 1915(a). To proceed in a
civil action without paying the standard filing fee, LSR 1-1
and § 1915 provide that a prisoner must submit the
court's form IFP application for incarcerated litigants.
LSR 1-2 and § 1915 specifically require that three items
be submitted with a prisoner's IFP application: (1) a
financial certificate signed by an authorized officer of the
institution in which he or she is incarcerated, (2) a copy of
his or her inmate trust account statement for the six-month
period prior to filing, and (3) a signed financial affidavit
showing an inability to prepay fees and costs or give
security for them. Labrada must either pay the $5 filing fee
or submit a complete IFP application with all required
attachments within 30 days from the date of this order.
Labrada incorrectly filed his petition under 28 U.S.C. §
2241. The petition states that he is in custody pursuant to a
state court judgment of conviction, so the only proper basis
for his claims is 28 U.S.C. § 2254. See White v.
Lambert, 370 F.3d 1002, 1005-07 (9th Cir. 2004),
overruled on other grounds by Hayward v. Marshall,
603 F.3d 546, 555 (9th Cir. 2010) (en banc). Unlike a
complaint in other civil cases, a petition for writ of habeas
corpus must be submitted on the court's approved form.
LSR 3-1; see also Habeas Rule 2(d). The form
instructs a petitioner to provide information about various
procedural matters, such as procedural default and
exhaustion. Labrada must, within 30 days of the date of this
order, file an amended petition on the correct § 2254
the petition does not name a respondent. Habeas Rule 2(a)
states that when a petitioner is “in custody under a
state-court judgment, the petition must name as respondent
the state officer who has custody.” Typically, this is
the warden of the correctional facility where a petitioner is
housed. Failure to name the proper respondent
strips the court of personal jurisdiction. Ortiz-Sandoval
v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996). As such,
Labrada's amended petition must name the correct
Labrada chooses to file an amended petition, he must do so
within 30 days of the date of this order. This is in addition
to resolving the filing fee and responding to the order to
show cause. The amended petition should set forth the claims
in short and plain terms, simply, concisely, and directly.
This means that Labrada should avoid legal jargon and
conclusions. Instead, he should summarize the information he
believes to be relevant in his own words for each claim
asserted. Exhibits are not a substitute for a proper
petition. Labrada should specifically identify what
constitutional rights he believes were violated.
Labrada is informed that he cannot refer to a prior pleading
(i.e., the original petition) in order to make the
amended petition complete. See LR 15-1(a);
Ramirez v. County of San Bernardino, 806 F.3d 1002,
1008 (9th Cir. 2015) (as a general rule, an amended pleading
supersedes the original). Therefore, the amended petition
must re-allege all claims for relief. Any ...