Opinion
2:11-cv-00584-PMP-GWF.
May 18, 2011
ORDER
This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner.
I. In Forma Pauperis Application (ECF No. 1)
Petitioner has filed a motion to proceed in forma pauperis. (ECF No. 1). Based on the information regarding petitioner's financial status, the Court finds that the motion to proceed in forma pauperis should be granted.
II. Non-Exhaustion of State Court Remedies
In the petition, petitioner admits that the grounds of the petition have not been presented to the state supreme court. (ECF No. 1-1, at p. 1). Petitioner alleges that the Nevada Supreme Court ruled that he is entitled to a Lozada remedy, but those proceedings have not concluded. Petitioner asserts that he has been denied the right to appeal his conviction, claiming that the Lozada remedy is somehow inadequate. Petitioner reiterates throughout the petition that his state court remedies have not been exhausted.
A petitioner must first present his grounds for relief to a state court before a federal court may review the merits of the issues he raises. 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. See Picard v. Conner, 404 U.S. 270, 275-76 (1971) ; 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). In the instant case, post-conviction proceedings, pursuant to the Lozada remedy, are currently proceeding in state district court. Because petitioner has not exhausted his grounds for relief in state court, this action shall be dismissed.
III. Certificate of Appealability
In order to proceed with an appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed.R.App.P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); s ee also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. ( quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id. This Court has considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that standard. The Court will therefore deny petitioner a certificate of appealability.
IV. Conclusion
IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF No. 1) is GRANTED. The Clerk SHALL FILE the petition for a writ of habeas corpus.
IT IS FURTHER ORDERED that the petition is DISMISSED WITHOUT PREJUDICE AS UNEXHAUSTED. IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF APPEALABILITY. IT IS FURTHER ORDERED that the Clerk SHALL ENTER JUDGMENT ACCORDINGLY.