Opinion
Case No. 2:17-cv-01084-RFB-VCF
12-19-2017
JOHN TURNER, Petitioner, v. NEVADA DEPARTMENT OF CORRECTIONS, et al., Respondents.
ORDER
Petitioner John Turner has submitted a pro se habeas corpus petition (ECF No. 1-1). His application to proceed in forma pauperis (ECF No. 1) shall be granted. The petition shall be dismissed without prejudice because Turner's state-court proceedings are ongoing, and he has not exhausted his claims.
A federal court will not grant a state prisoner's petition for habeas relief until the prisoner has exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his claims before he presents those claims in a federal habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has given the highest available state court the opportunity to consider the claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).
Here, petitioner has attached documents from his state postconviction proceedings. The court may also take notice of the dockets of the Nevada Supreme Court and the Nevada Court of Appeals. Taken together, they reflect that Turner's appeal of the denial of his state postconviction petition is pending before the Nevada Court of Appeals (see ECF No. 1-1, p. 32, 37; Nevada Court of Appeals Case No. 72602). The resolution of Turner's state postconviction petition could render a federal habeas petition moot. Accordingly, this federal petition shall be dismissed without prejudice to petitioner filing a new federal habeas petition, in a new case with a new case number and a new, completed application to proceed in forma pauperis with the required financial information.
IT IS THEREFORE ORDERED that petitioner's application for leave to proceed in forma pauperis (ECF No. 1) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall file and ELECTRONICALLY SERVE the petition (ECF No. 1-1) on the respondents, for informational purposes only.
IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada Attorney General, as counsel for respondents.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice as set forth in this order.
IT IS FURTHER ORDERED that petitioner's motion for appointment of counsel (ECF No. 4), motion for court order (ECF No. 5), motion for appointment of counsel (ECF No. 6), motion for evidentiary hearing (ECF No. 7), and motion for relief (ECF No. 8) are DENIED as moot. . . . . . . . . . . . . . . . . . .
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case.
DATED: 19 December 2017.
/s/_________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE