3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 DANIEL DEAN BALLARD, Case No. 3:21-cv-00460-RCJ-WGC
6 Petitioner, v. ORDER 7 STATE OF NEVADA, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Petitioner Daniel Dean Ballard’s Application to 11 Proceed In Forma Pauperis (“IFP”) (ECF No. 13) and for initial review under the Rules Governing 12 Section 2254 Cases.1 For the reasons discussed below, the Court orders Petitioner to show cause 13 in writing within 30 days as to why this action should not be dismissed without prejudice for failure 14 to exhaust his claims in state court. 15 Background 16 Petitioner challenges a conviction and sentence imposed by the Eighth Judicial District 17 Court for Clark County (“state court”). State of Nevada v. Daniel Ballard, Case No. C-18-331667- 18 1.2 On February 19, 2020, the state court entered a judgment of conviction for battery by 19 strangulation and malicious destruction of property. Petitioner represents that he was sentenced to 20 24 to 60 months. Petitioner did not file a direct appeal. 21 In April 2020, Petitioner filed a state petition for writ of habeas corpus. Daniel Ballard v. 22 Calvin Johnson, Case No. A-20-814509-W. The state court denied post-conviction relief. 23
24 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the 25 Rules Governing Section 2254 Cases in the United States District Courts. 2 The Court takes judicial notice of the online docket records of the Eighth Judicial District Court 26 and Nevada appellate courts. The docket records may be accessed by the public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx and 27 at: http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 Petitioner did not file a post-conviction appeal. On November 29, 2021, Petitioner filed his federal 2 habeas corpus petition proceeding pro se. (ECF No. 6.) The Court instructed him to file a fully 3 complete application to proceed in forma pauperis and he timely complied. (ECF Nos. 12, 13.) 4 Discussion 5 I. IFP Application 6 Petitioner has requested permission to proceed in forma pauperis (“IFP”), meaning without 7 paying the standard five dollar ($5.00) filing fee. Pursuant to 28 U.S.C. § 1914(a) and the Judicial 8 Conference Schedule of Fees, a $5.00 fee is required to initiate a habeas action in a federal district 9 court. The court may authorize a prisoner to begin a habeas action without paying the fee if he or 10 she submits an IFP application on the approved form along with the appropriate supporting 11 documentation: (1) a financial certificate signed by an authorized prison official, (2) a copy of the 12 prisoner’s trust account statement for the six-month period prior to filing, and (3) a financial 13 affidavit and acknowledgement signed by the prisoner showing an inability to prepay fees and 14 costs or give security for them. 28 U.S.C. § 1915(a); LSR 1-1, LSR 1-2. 15 The Court has considered Petitioner’s IFP application along with the attached financial 16 documents and concludes that he cannot pay the $5.00 filing fee. The IFP application (ECF No. 17 13) will therefore be granted. Petitioner’s incomplete IFP application (ECF No. 4) is denied as 18 moot. 19 II. Order to Show Cause 20 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition and order 21 a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 22 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss 23 petitions that are patently frivolous, vague, conclusory, palpably incredible, false, or plagued by 24 procedural defects. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hendricks v. 25 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). 26 Here, it appears likely that Ballard’s petition is wholly unexhausted in state court and is 27 subject to dismissal without prejudice. A state prisoner first must exhaust state court remedies on 1 a habeas claim before presenting that claim to the federal courts. 28 U.S.C. 2 § 2254(b)(1)(A). This exhaustion requirement ensures that the state courts, as a matter of comity, 3 will have the first opportunity to address and correct alleged violations of federal constitutional 4 guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). “A petitioner has exhausted his 5 federal claims when he has fully and fairly presented them to the state courts.” Woods v. Sinclair, 6 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 7 (1999) (“Section 2254(c) requires only that state prisoners give state courts a fair opportunity to 8 act on their claims.”)). To satisfy the exhaustion requirement, a claim must have been raised 9 through one complete round of either direct appeal or collateral proceedings to the highest state 10 court level of review available. O’Sullivan, 526 U.S. at 844–45; Peterson v. Lampert, 319 F.3d 11 1153, 1156 (9th Cir. 2003) (en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). A 12 properly exhausted claim “ ‘must include reference to a specific federal constitutional guarantee, 13 as well as a statement of the facts that entitle the petitioner to relief’.” Woods, 764 14 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996)); Castillo v. McFadden, 15 399 F.3d 993, 999 (9th Cir. 2005) (fair presentation requires both the operative facts and federal 16 legal theory upon which a claim is based). 17 Petitioner did not file a direct appeal. Although Petitioner filed a state habeas action, which 18 the state court denied, he did not file a post-conviction appeal. Thus, it is virtually certain that he 19 has not exhausted any federal constitutional claim relative to his judgment of conviction, and that 20 this federal habeas corpus action is premature. Accordingly, Petitioner will be required to show 21 cause why this action should not be dismissed because of his failure to exhaust any claim in state 22 court. 23 III. § 1983 Complaint 24 When he commenced this proceeding, Petitioner submitted both a civil rights complaint 25 pursuant to 42 U.S.C. § 1983 and a petition for writ of habeas corpus. (ECF Nos. 4-1, 6.) The 26 Court informed Petitioner that he could not pursue both types of claims in the same case. (ECF 27 No. 12.) The Court instructed him to file a notice with the Court indicating which action he wishes 1 to pursue in this case. (Id.) Petitioner filed a notice indicating that he intends to proceed with his 2 petition for writ of habeas corpus instead of his 42 U.S.C § 1983 complaint.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 DANIEL DEAN BALLARD, Case No. 3:21-cv-00460-RCJ-WGC
6 Petitioner, v. ORDER 7 STATE OF NEVADA, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Petitioner Daniel Dean Ballard’s Application to 11 Proceed In Forma Pauperis (“IFP”) (ECF No. 13) and for initial review under the Rules Governing 12 Section 2254 Cases.1 For the reasons discussed below, the Court orders Petitioner to show cause 13 in writing within 30 days as to why this action should not be dismissed without prejudice for failure 14 to exhaust his claims in state court. 15 Background 16 Petitioner challenges a conviction and sentence imposed by the Eighth Judicial District 17 Court for Clark County (“state court”). State of Nevada v. Daniel Ballard, Case No. C-18-331667- 18 1.2 On February 19, 2020, the state court entered a judgment of conviction for battery by 19 strangulation and malicious destruction of property. Petitioner represents that he was sentenced to 20 24 to 60 months. Petitioner did not file a direct appeal. 21 In April 2020, Petitioner filed a state petition for writ of habeas corpus. Daniel Ballard v. 22 Calvin Johnson, Case No. A-20-814509-W. The state court denied post-conviction relief. 23
24 1 All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the 25 Rules Governing Section 2254 Cases in the United States District Courts. 2 The Court takes judicial notice of the online docket records of the Eighth Judicial District Court 26 and Nevada appellate courts. The docket records may be accessed by the public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx and 27 at: http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 1 Petitioner did not file a post-conviction appeal. On November 29, 2021, Petitioner filed his federal 2 habeas corpus petition proceeding pro se. (ECF No. 6.) The Court instructed him to file a fully 3 complete application to proceed in forma pauperis and he timely complied. (ECF Nos. 12, 13.) 4 Discussion 5 I. IFP Application 6 Petitioner has requested permission to proceed in forma pauperis (“IFP”), meaning without 7 paying the standard five dollar ($5.00) filing fee. Pursuant to 28 U.S.C. § 1914(a) and the Judicial 8 Conference Schedule of Fees, a $5.00 fee is required to initiate a habeas action in a federal district 9 court. The court may authorize a prisoner to begin a habeas action without paying the fee if he or 10 she submits an IFP application on the approved form along with the appropriate supporting 11 documentation: (1) a financial certificate signed by an authorized prison official, (2) a copy of the 12 prisoner’s trust account statement for the six-month period prior to filing, and (3) a financial 13 affidavit and acknowledgement signed by the prisoner showing an inability to prepay fees and 14 costs or give security for them. 28 U.S.C. § 1915(a); LSR 1-1, LSR 1-2. 15 The Court has considered Petitioner’s IFP application along with the attached financial 16 documents and concludes that he cannot pay the $5.00 filing fee. The IFP application (ECF No. 17 13) will therefore be granted. Petitioner’s incomplete IFP application (ECF No. 4) is denied as 18 moot. 19 II. Order to Show Cause 20 Pursuant to Habeas Rule 4, the assigned judge must examine the habeas petition and order 21 a response unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 22 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to screen and dismiss 23 petitions that are patently frivolous, vague, conclusory, palpably incredible, false, or plagued by 24 procedural defects. Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998); Hendricks v. 25 Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (collecting cases). 26 Here, it appears likely that Ballard’s petition is wholly unexhausted in state court and is 27 subject to dismissal without prejudice. A state prisoner first must exhaust state court remedies on 1 a habeas claim before presenting that claim to the federal courts. 28 U.S.C. 2 § 2254(b)(1)(A). This exhaustion requirement ensures that the state courts, as a matter of comity, 3 will have the first opportunity to address and correct alleged violations of federal constitutional 4 guarantees. Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). “A petitioner has exhausted his 5 federal claims when he has fully and fairly presented them to the state courts.” Woods v. Sinclair, 6 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 7 (1999) (“Section 2254(c) requires only that state prisoners give state courts a fair opportunity to 8 act on their claims.”)). To satisfy the exhaustion requirement, a claim must have been raised 9 through one complete round of either direct appeal or collateral proceedings to the highest state 10 court level of review available. O’Sullivan, 526 U.S. at 844–45; Peterson v. Lampert, 319 F.3d 11 1153, 1156 (9th Cir. 2003) (en banc); Vang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). A 12 properly exhausted claim “ ‘must include reference to a specific federal constitutional guarantee, 13 as well as a statement of the facts that entitle the petitioner to relief’.” Woods, 764 14 F.3d at 1129 (quoting Gray v. Netherland, 518 U.S. 152, 162–63 (1996)); Castillo v. McFadden, 15 399 F.3d 993, 999 (9th Cir. 2005) (fair presentation requires both the operative facts and federal 16 legal theory upon which a claim is based). 17 Petitioner did not file a direct appeal. Although Petitioner filed a state habeas action, which 18 the state court denied, he did not file a post-conviction appeal. Thus, it is virtually certain that he 19 has not exhausted any federal constitutional claim relative to his judgment of conviction, and that 20 this federal habeas corpus action is premature. Accordingly, Petitioner will be required to show 21 cause why this action should not be dismissed because of his failure to exhaust any claim in state 22 court. 23 III. § 1983 Complaint 24 When he commenced this proceeding, Petitioner submitted both a civil rights complaint 25 pursuant to 42 U.S.C. § 1983 and a petition for writ of habeas corpus. (ECF Nos. 4-1, 6.) The 26 Court informed Petitioner that he could not pursue both types of claims in the same case. (ECF 27 No. 12.) The Court instructed him to file a notice with the Court indicating which action he wishes 1 to pursue in this case. (Id.) Petitioner filed a notice indicating that he intends to proceed with his 2 petition for writ of habeas corpus instead of his 42 U.S.C § 1983 complaint. (ECF No. 14.) The 3 Court informed Petitioner that the Court will not file his § 1983 complaint in a separate action for 4 him. (ECF No. 15.) The Court informed Petitioner that if he intended to initiate a § 1983 action, 5 he may file his complaint and a fully complete application to proceed in forma pauperis to the 6 Clerk of the Court. 7 It appears that Petitioner attempted to initiate a § 1983 action by filing his complaint and 8 application to proceed in forma pauperis. (ECF Nos. 19, 20.) The Clerk of the Court, however, 9 filed the documents in this action in error. Accordingly, the Clerk of the Court is directed to file 10 Petitioner’s application to proceed in forma pauperis (ECF No. 19) and his § 1983 complaint (ECF 11 No. 20) in a new, separate case. The Clerk of the Court is further directed to strike ECF Nos. 19 12 and 20 from this action. 13 IT IS THEREFORE ORDERED: 14 1. Petitioner Daniel Dean Ballard’s Application to Proceed In Forma Pauperis (ECF 15 No. 13) is GRANTED. 16 2. Petitioner Daniel Dean Ballard’s Application to Proceed In Forma Pauperis (ECF 17 No. 4) is DENIED. 18 3. Petitioner must file within 45 days of the date of this order, a “Response to Order to 19 Show Cause,” in writing, showing cause why this action should not be dismissed 20 without prejudice based on his failure to exhaust his claims in Nevada Courts. 21 Petitioner’s response must be factually detailed, and, where possible, supported by 22 exhibits. 23 4. If Petitioner fails to timely and fully comply with this order, the Court will dismiss this 24 action without prejudice and without further advance notice. 25 5. The Clerk of the Court is directed to file Petitioner’s application to proceed in forma 26 /// 27 /// 1 2 pauperis (ECF No. 19) and his § 1983 complaint (ECF No. 20) in a new, separate case. 3 The Clerk of the Court is further directed to strike ECF Nos. 19 and 20 from this action. 4 DATED this 2nd day of March 2022. 5 6 . ROBERT C. JONES 7 UNITED STA DISTRICT JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28