1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 FOLAJI AKINBAYODE, Case No. 3:22-cv-00403-ART-CLB 4 Petitioner, ORDER 5 v.
6 STATE OF NEVADA, et al.,
7 Respondents.
8 9 This is a habeas corpus proceeding under 28 U.S.C. § 2254. Petitioner, 10 Folaji Akinbayode, has filed a motion for leave to proceed in forma pauperis 11 which shows that he is unable to pay the filing fee of $5.00 required to initiate 12 this action. ECF No. 4. Accordingly, his motion for leave to proceed in forma 13 pauperis will be granted. 14 Rule 4 of the Rules Governing Section 2254 Cases requires the court to 15 conduct a preliminary review of each petition for writ of habeas corpus and “[i]f 16 it plainly appears from the petition and any attached exhibits that the petitioner 17 is not entitled to relief in the district court, the judge must dismiss the petition 18 and direct the clerk to notify the petitioner.” The Court has reviewed 19 Akinbayode’s habeas petition and finds that if fits squarely within this 20 provision. Because the petition cannot be cured by amendment, this action will 21 be dismissed without leave to amend. 22 The Petition 23 Akinbayode indicates that he is currently incarcerated at the Washoe 24 County Jail. His petition is, for the most part, a disjointed assemblage of 25 allegations and attachments, but his primary grievance appears to be that the 26 district attorney and/or his own attorney misled him about a misdemeanor 27 charge being dismissed. He contends that his attorney told him that if he “took 28 a nolo contendre plea” on a gross misdemeanor charge of battery on protected 1 person, he would be sentenced to time served and the State would dismiss a 2 misdemeanor charge of resisting public officer. 3 Akinbayode also claims that his Miranda rights were not read to him 4 when he was arrested and appears to be claiming that he has been the subject 5 of police brutality, racial profiling, and client intimidation tactics. 6 Discussion 7 For several reasons, this Court is unable to provide Akinbayode with 8 federal habeas relief. 9 1. Custody. 10 The federal habeas statute bestows jurisdiction on district courts to 11 entertain petitions challenging a judgment of conviction only for persons who 12 are "in custody" under the conviction at the time that the petition is filed. 13 Maleng v. Cook, 490 U.S. 488, 490-91 (1989). A habeas petitioner is not "in 14 custody" under a judgment of conviction for purposes of federal habeas 15 jurisdiction where the sentence imposed by the judgment has fully expired prior 16 to the filing of the federal petition. See id. at 492; DeLong v. Hennessey, 912 17 F.2d 1144, 1146 (9th Cir. 1990). In addition, “once the sentence imposed for a 18 conviction has completely expired, the collateral consequences of that 19 conviction are not themselves sufficient to render an individual ‘in custody’ for 20 the purposes of a habeas attack upon it.” Maleng, 490 U.S. at 492. A habeas 21 petitioner does not remain “in custody” when his sentence has expired “merely 22 because of the possibility that the prior conviction will be used to enhance the 23 sentences imposed for any subsequent crimes of which he is convicted.” Id. 24 To the extent that Akinbayode seeks to challenge his conviction for 25 battery on protected person, he indicates in his petition that, with credit for 26 time served, he discharged his sentence on June 27, 2022. ECF No. 1-1 at 2.1 27 1 The Court takes judicial notice of information provided online by the Second Judicial District Court 28 1 He did not initiate this proceeding until September 3, 2022. Id. at 18. That 2 being the case, he cannot meet the “in custody” requirement necessary for this 3 Court’s habeas jurisdiction to review that judgment of conviction. The fact that 4 he remains in custody on a separate matter does not lead to a different 5 conclusion. See Magwood v. Patterson, 561 U.S. 320, 333 (2010) (holding that a 6 § 2254 petitioner is not challenging his custody status, but rather the judgment 7 that authorizes custody). 8 2. Younger Abstention. 9 As a general rule, a federal court will not entertain a habeas petition 10 seeking intervention in a pending state criminal proceeding, absent special 11 circumstances. See, e.g., Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 12 1983); Carden v. Montana, 626 F.2d 82, 83 85 (9th Cir. 1980); Davidson v. 13 Klinger, 411 F.2d 746 (9th Cir. 1969). This rule of restraint ultimately is 14 grounded in principles of comity that flow from the abstention doctrine of 15 Younger v. Harris, 401 U.S. 37 (1971). Under the Younger abstention doctrine, 16 federal courts may not interfere with pending state criminal proceedings absent 17 extraordinary circumstances. 18 Akinbayode’s petition does not specify why he is currently in custody at 19 the Washoe County Jail. His petition mentions the misdemeanor charge for 20 resisting public officer but does not specify the status of that charge. Based on 21 an inmate search of the Washoe County Sheriff’s Office, the Court notes that he 22 is facing a battery by prisoner charge that is most likely the reason why he 23 remains in custody.2 In any case, this Court is unable to intervene in a pending 24 which confirms that Akinbayode pled guilty on June 24, 2022, and was “sentenced to credit time served” 25 and that the judgment of conviction was entered on June 27, 2022. https://www.washoecourts.com/Query/CaseInformation/CR22-0623. (Accessed on September 26, 2022). 26 2 Search conducted for Akinbayode on September 26, 2022, at https://www.washoesheriff.com/inmate- 27 search.php. Cross referenced with the Second Judicial District Court’s online information, the trial in this matter has been vacated pending a psychiatric evaluation, and Akinbayode is represented by the public 28 1 state criminal proceeding absent circumstances that are not present in this 2 case. 3 3. Exhaustion. 4 Before a prisoner seeks federal habeas relief, he must exhaust his state 5 court remedies before presenting his constitutional claims to the federal courts. 6 28 U.S.C. § 2254(b). The exhaustion rule applies not only to cases brought 7 under § 2254, but also to requests for federal pre-conviction intervention in 8 pending state criminal proceedings. See, e.g., Braden v. 30th Judicial Circuit 9 Court of Kentucky, 410 U.S. 484, 489 92 (1973); Carden v. State of Montana, 10 626 F.2d 82, 83 (9th Cir. 1980). In that context, the rule is grounded in 11 principles of judicial restraint that predate and operate independently of the 12 statutory exhaustion requirement in § 2254. 13 To satisfy the exhaustion requirement, the claim must have been fairly 14 presented to the state courts completely through to the highest court available. 15 Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Vang v. 16 Nevada,
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 FOLAJI AKINBAYODE, Case No. 3:22-cv-00403-ART-CLB 4 Petitioner, ORDER 5 v.
6 STATE OF NEVADA, et al.,
7 Respondents.
8 9 This is a habeas corpus proceeding under 28 U.S.C. § 2254. Petitioner, 10 Folaji Akinbayode, has filed a motion for leave to proceed in forma pauperis 11 which shows that he is unable to pay the filing fee of $5.00 required to initiate 12 this action. ECF No. 4. Accordingly, his motion for leave to proceed in forma 13 pauperis will be granted. 14 Rule 4 of the Rules Governing Section 2254 Cases requires the court to 15 conduct a preliminary review of each petition for writ of habeas corpus and “[i]f 16 it plainly appears from the petition and any attached exhibits that the petitioner 17 is not entitled to relief in the district court, the judge must dismiss the petition 18 and direct the clerk to notify the petitioner.” The Court has reviewed 19 Akinbayode’s habeas petition and finds that if fits squarely within this 20 provision. Because the petition cannot be cured by amendment, this action will 21 be dismissed without leave to amend. 22 The Petition 23 Akinbayode indicates that he is currently incarcerated at the Washoe 24 County Jail. His petition is, for the most part, a disjointed assemblage of 25 allegations and attachments, but his primary grievance appears to be that the 26 district attorney and/or his own attorney misled him about a misdemeanor 27 charge being dismissed. He contends that his attorney told him that if he “took 28 a nolo contendre plea” on a gross misdemeanor charge of battery on protected 1 person, he would be sentenced to time served and the State would dismiss a 2 misdemeanor charge of resisting public officer. 3 Akinbayode also claims that his Miranda rights were not read to him 4 when he was arrested and appears to be claiming that he has been the subject 5 of police brutality, racial profiling, and client intimidation tactics. 6 Discussion 7 For several reasons, this Court is unable to provide Akinbayode with 8 federal habeas relief. 9 1. Custody. 10 The federal habeas statute bestows jurisdiction on district courts to 11 entertain petitions challenging a judgment of conviction only for persons who 12 are "in custody" under the conviction at the time that the petition is filed. 13 Maleng v. Cook, 490 U.S. 488, 490-91 (1989). A habeas petitioner is not "in 14 custody" under a judgment of conviction for purposes of federal habeas 15 jurisdiction where the sentence imposed by the judgment has fully expired prior 16 to the filing of the federal petition. See id. at 492; DeLong v. Hennessey, 912 17 F.2d 1144, 1146 (9th Cir. 1990). In addition, “once the sentence imposed for a 18 conviction has completely expired, the collateral consequences of that 19 conviction are not themselves sufficient to render an individual ‘in custody’ for 20 the purposes of a habeas attack upon it.” Maleng, 490 U.S. at 492. A habeas 21 petitioner does not remain “in custody” when his sentence has expired “merely 22 because of the possibility that the prior conviction will be used to enhance the 23 sentences imposed for any subsequent crimes of which he is convicted.” Id. 24 To the extent that Akinbayode seeks to challenge his conviction for 25 battery on protected person, he indicates in his petition that, with credit for 26 time served, he discharged his sentence on June 27, 2022. ECF No. 1-1 at 2.1 27 1 The Court takes judicial notice of information provided online by the Second Judicial District Court 28 1 He did not initiate this proceeding until September 3, 2022. Id. at 18. That 2 being the case, he cannot meet the “in custody” requirement necessary for this 3 Court’s habeas jurisdiction to review that judgment of conviction. The fact that 4 he remains in custody on a separate matter does not lead to a different 5 conclusion. See Magwood v. Patterson, 561 U.S. 320, 333 (2010) (holding that a 6 § 2254 petitioner is not challenging his custody status, but rather the judgment 7 that authorizes custody). 8 2. Younger Abstention. 9 As a general rule, a federal court will not entertain a habeas petition 10 seeking intervention in a pending state criminal proceeding, absent special 11 circumstances. See, e.g., Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 12 1983); Carden v. Montana, 626 F.2d 82, 83 85 (9th Cir. 1980); Davidson v. 13 Klinger, 411 F.2d 746 (9th Cir. 1969). This rule of restraint ultimately is 14 grounded in principles of comity that flow from the abstention doctrine of 15 Younger v. Harris, 401 U.S. 37 (1971). Under the Younger abstention doctrine, 16 federal courts may not interfere with pending state criminal proceedings absent 17 extraordinary circumstances. 18 Akinbayode’s petition does not specify why he is currently in custody at 19 the Washoe County Jail. His petition mentions the misdemeanor charge for 20 resisting public officer but does not specify the status of that charge. Based on 21 an inmate search of the Washoe County Sheriff’s Office, the Court notes that he 22 is facing a battery by prisoner charge that is most likely the reason why he 23 remains in custody.2 In any case, this Court is unable to intervene in a pending 24 which confirms that Akinbayode pled guilty on June 24, 2022, and was “sentenced to credit time served” 25 and that the judgment of conviction was entered on June 27, 2022. https://www.washoecourts.com/Query/CaseInformation/CR22-0623. (Accessed on September 26, 2022). 26 2 Search conducted for Akinbayode on September 26, 2022, at https://www.washoesheriff.com/inmate- 27 search.php. Cross referenced with the Second Judicial District Court’s online information, the trial in this matter has been vacated pending a psychiatric evaluation, and Akinbayode is represented by the public 28 1 state criminal proceeding absent circumstances that are not present in this 2 case. 3 3. Exhaustion. 4 Before a prisoner seeks federal habeas relief, he must exhaust his state 5 court remedies before presenting his constitutional claims to the federal courts. 6 28 U.S.C. § 2254(b). The exhaustion rule applies not only to cases brought 7 under § 2254, but also to requests for federal pre-conviction intervention in 8 pending state criminal proceedings. See, e.g., Braden v. 30th Judicial Circuit 9 Court of Kentucky, 410 U.S. 484, 489 92 (1973); Carden v. State of Montana, 10 626 F.2d 82, 83 (9th Cir. 1980). In that context, the rule is grounded in 11 principles of judicial restraint that predate and operate independently of the 12 statutory exhaustion requirement in § 2254. 13 To satisfy the exhaustion requirement, the claim must have been fairly 14 presented to the state courts completely through to the highest court available. 15 Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc); Vang v. 16 Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the petitioner 17 must refer to the specific federal constitutional guarantee and must also state 18 the facts that entitle the petitioner to relief on the federal constitutional claim. 19 Shumway v. Payne, 223 F.3d 983, 987 (9th Cir. 2000). That is, fair 20 presentation requires that the petitioner present the state courts with both the 21 operative facts and the federal legal theory upon which his claim is based. 22 Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion 23 requirement insures that the state courts, as a matter of federal-state comity, 24 will have the first opportunity to pass upon and correct alleged violations of 25 federal constitutional guarantees. Coleman v. Thompson, 501 U.S. 722, 731 26 (1991). 27 defender. https://www.washoecourts.com/Query/CaseInformation/CR22-1130. (Accessed on September 28 26, 2022). 1 According to Akinbayode’s petition and attachments, the only state 2 || proceeding he has initiated after his judgment of conviction for battery on 3 || protected person is an untimely notice of appeal. ECF No. 1-1 at 4, 10, 17, 19. 4 || The Nevada Supreme Court has ordered him to show cause why it should not 5 || be dismissed for lack of jurisdiction. Jd. at 19. Regardless of whether he seeking 6 || to challenge that judgment of conviction or asking this Court to intervene in a 7 || pending state criminal proceeding, it appears impossible that Akinbayode has 8 || presented any federal claims to the highest Nevada court available in a manner 9 || that has permitted that court to adjudicate them. 10 Conclusion 11 Even if the Court were to allow Akinbayode to amend his habeas petition, 12 || he is not be able to meet the conditions for habeas relief discussed above. 13 It is therefore ordered that Akinbayode’s motion for leave to proceed in 14 || forma pauperis (ECF No. 4) is granted. The Clerk shall file the petition. 15 It is further ordered that the petition for writ of habeas corpus is 16 || dismissed without leave to amend. The Clerk shall enter judgment accordingly 17 || and close this case. 18 It is further ordered that the Court declines to issue a certificate of 19 || appealability as reasonable jurists would not find the Court’s decision to be 20 || debatable or wrong. 21 It is further ordered that the Clerk is directed to electronically serve a 22 || copy of this order and the petition on the respondents via the Nevada Attorney 23 || General. 24 DATED THIS 12t day of October, 2022. 25 26 Aras plod Td 27 ANNER TRAUM 28 UNITED STATES DISTRICT JUDGE