Munoz-Negrete v. Breitenbach

• Court: District Court, D. Nevada
• Decided: February 3, 2025
• Docket: 3:25-cv-00011
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DANIEL MUNOZ-NEGRETE, Case No. 3:25-cv-00011-MMD-CSD

7 Petitioner, ORDER v. 8

9 NETHANJAH BREITENBACH, et al.,

10 Respondents.

11 12 I. SUMMARY 13 Petitioner Daniel Muñoz-Negrete (“Muñoz”), a Nevada state prisoner, has 14 submitted a pro se Petition for Writ of Habeas Corpus (“Petition (ECF No. 1-1)) under 28 15 U.S.C. § 2254, a Motion for Appointment of Counsel (ECF No. 1-2); and an incomplete 16 Motion to Proceed In Forma Pauperis (“IFP” (ECF No. 4)). The Court deferred initial 17 screening and instructed Muñoz to either pay the filing fee or submit a complete IFP 18 application. (ECF No. 3.) Muñoz timely paid the fee. (ECF No. 6.) This matter is now 19 before the Court for initial review under the Rules Governing Section 2254 Cases.1 The 20 Court will dismiss the Petition without prejudice because the Petition is premature. 21 II. BACKGROUND2 22 On July 28, 2020, Muñoz was charged with Murder with the Use of a Deadly 23 Weapon. In August of 2021, he pleaded guilty to Second-Degree Murder with Use of a 24 Deadly Weapon. In November of 2021 he was sentenced to life with the possibility of 25

26 1All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the Rules Governing Section 2254 Cases in the United States District Courts. 27 2The Court takes judicial notice of the online docket records of the Second Judicial 28 District Court in Washoe County, Case Information - Washoecourts, and the Supreme 1 parole after serving 10 years plus a consecutive sentence of eight to 20 years for the 2 deadly weapon enhancement. 3 In October of 2022, a petition for writ of habeas corpus and motion to compel 4 discharge of counsel were filed in the state district court. On April 22, 2024, the state 5 district court granted the motion to discharge counsel. On May 28, 2024, a second petition 6 for writ of habeas corpus was filed in the state district court. On October 28, 2024, 7 Respondents moved to dismiss the petitions. 8 On November 8, 2024, Muñoz filed a notice of appeal with the Supreme Court of 9 Nevada and the state supreme court dismissed the appeal as premature because the 10 state district court had not yet decided the petitions for writ of habeas corpus. The state 11 district court has since appointed counsel for the state habeas proceedings. 12 III. DISCUSSION 13 Under Habeas Rule 4, the assigned judge must examine the habeas petition and 14 order a response unless it “plainly appears” the petitioner is not entitled to relief. See 15 Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). This rule allows courts to 16 screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably 17 incredible, or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) 18 (collecting cases). The court may also dismiss claims at screening for procedural defects. 19 See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998). 20 A federal court will not grant a state prisoner’s petition for habeas relief until the 21 prisoner has exhausted his available state remedies for all claims raised. See Rose v. 22 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts 23 a fair opportunity to act on each of his claims before he presents those claims in a federal 24 habeas petition. See O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan 25 v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has 26 given the highest available state court the opportunity to consider the claim through direct 27 appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 28 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). 1 Munoz’s state postconviction petitions are still pending before the state district 2 || court and the resolution of those state postconviction proceedings could render a federal 3 || habeas petition moot. Thus, Munoz’s federal petition will be dismissed without prejudice 4 || to his filing a new federal habeas petition, in a new case with a new case number, and 5 || accompanied by either the filing fee or a complete Application to Proceed In Forma 6 || Pauperis. 7 IV. CONCLUSION 8 It is therefore ordered that Petitioner Daniel Munoz-Negrete’s Application for Leave 9 || to Proceed /n Forma Pauperis (ECF No. 4) is denied without prejudice. 10 It is further ordered that Munoz’s Motion for Appointment of Counsel (ECF No. 1- 11 || 2) is denied without prejudice. 12 It is further ordered that the Petition (ECF No. 1-1) is dismissed without prejudice 13 || as set forth in this order. 14 It is further ordered that a Certificate of Appealability is denied. 15 It is further ordered that the Clerk of Court: (1) add Aaron D. Ford, Nevada Attorney 16 || General, as counsel for Respondents; (2) file and electronically serve the Petition (ECF 17 || No. 1-1) on Respondents, for informational purposes only; and (3) close this case. 18 DATED THIS 3” Day of February 2025.

20 MIRANDAM.DU UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28