United States District Court, D. Nevada
ORDER TO SHOW CAUSE
R. HICKS, UNITED STATES DISTRICT JUDGE.
habeas matter is before the Court on consideration of pro
se Petitioner Daniel George Gravelle's Application
to Proceed In Forma Pauperis (ECF No. 1) and an
initial review under the Rules Governing Section 2254
Cases. For the reasons discussed below, the Court
orders Gravelle to show cause in writing within 45 days as to
why this action should not be dismissed without prejudice for
a failure to exhaust his claims in state court. He must also
resolve the filing fee and file an amended petition.
challenges a conviction and sentence imposed by the Fourth
Judicial District Court for Elko County (“state
court”). (ECF No. 1-1 at 2 (citing case number
CR-FP-15-0934).) A jury found him guilty of possession of a
firearm by a person convicted of a felony offense. In
November 2015, the state court entered a judgment of
conviction and sentenced him to 24-60 months in the custody
of the Nevada Department of Corrections. Although his
petition represents that he is currently incarcerated at the
Elko County Jail, he challenges the November 2015 conviction.
Gravelle represents that he did not file an appeal to the
Nevada appellate courts regarding his conviction and has not
previously filed any petitions, applications, or motions with
respect to this judgment in any state or federal court.
Order 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).
it appears likely that Gravelle's petition is wholly
unexhausted in the 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 in November 2015. The
petitioner concedes that he has not filed a direct appeal or
initiated a post-conviction proceeding in the state court.
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, Gravelle will be required to show cause why this
action should not be dismissed because of his failure to
exhaust any claim in state court.
The Filing Fee and Required Amendment
addition to the lack of exhaustion, multiple procedural
errors are apparent in this action.
Gravelle 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 petition and IFP
application on forms used by the state court. The federal IFP
application for prisoner and petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 required in this
federal district court differs greatly from the IFP
application and petition used in Nevada state courts.
proceed in a federal habeas 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. Gravelle must
either pay the $5 filing fee or submit a complete IFP
application with all required attachments within 45 days from
the date of this order.
Gravelle incorrectly filed his petition on the state
court's form. The petition states that he is challenging
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, or
be in substantial compliance with the federal form. LSR 3-1;
see also Habeas Rule 2(d). The form instructs a
petitioner to provide answers pertaining to various
procedural matters, such as procedural default and
exhaustion. Gravelle must, within 45 days of the date of this
order, file an amended petition on the correct § 2254
the petition does not name a proper respondent. Instead, he
has generically named the State of Nevada. 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, any
amended petition must name the correct respondent.
Gravelle chooses to file an amended petition, he must do so
within 45 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 Gravelle should avoid legal jargon and
conclusions. Instead, he should summarize the information he
believes to be relevant in his own words for each claim