Opinion
2:13-cv-00135-GMN-GWF
01-28-2013
TONY LEE SMITH, Petitioner, v. CLARK COUNTY SHERIFF, Respondent.
ORDER
The petitioner, proceeding in proper person without counsel, has presented the Court with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application to proceed in forma pauperis. ECF. No. 1.
The petitioner's application to proceed in forma pauperis, including the financial certificate, establishes that the petitioner qualifies for in forma pauperis status. He shall be granted leave to proceed in forma pauperis, and shall not be required to pay the filing fee for his habeas corpus petition. The petition will be ordered filed and docketed.
As required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, a preliminary review of the petition and attachments indicates that this Court lacks jurisdiction to entertain this petition under 28 U.S.C. § 2254.
28 U.S.C. § 2254 provides that this Court will entertain an application for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court" where there are grounds indicating that the petitioner was convicted in violation of the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). From the face of this petition it is evident that petitioner is a pre-trial detainee who has not yet suffered a conviction.
Petitioner apparently has a pre-trial petition for writ of habeas corpus on file with the state district court which attacks pre-trial proceedings and the sufficiency of the charging document. The Nevada Supreme Court declined to entertain his petition for writ of mandamus seeking an order directing the district court to address that petition. See Exhibits A and B to the petition. Thus, petitioner has not exhausted his claims before the state court, another requirement for obtaining relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2254(b)(1).
IT IS THEREFORE ORDERED that the application to proceed in forma pauperis (ECF No. 1) is GRANTED. The Clerk shall file the petition.
IT IS FURTHER ORDERED that the petitioner is DISMISSED for lack of subject matter jurisdiction. The Clerk shall enter judgment accordingly.
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Gloria. M. Navarro
United States District Judge