Quezada v. Southern Desert Correctional Center

Opinion

ANDY QUEZADA, Case No.: 2:24-cv-02308-APG-DJA

Petitioner, Order Dismissing Action

v.

RONALD OLIVER, et al.,

Respondents.

This action was initiated pro se by Andy Quezada on December 12, 2024 as a petition for a writ of habeas corpus. Quezada has not paid the $5 filing fee and he has not applied to proceed in forma pauperis. And his habeas petition (ECF No. 1-1) is not on a form recognized by this court; rather, it is on a form apparently meant for filing in state court. See Local Rules LSR 1-1, 1-2, 3-1. I will dismiss this action, without prejudice, for these reasons. If Quezada wishes to attempt to proceed with this action, he must submit a petition for writ of habeas corpus on the correct federal-court form, and he must either pay the $5 filing fee or file an application to proceed in forma pauperis using the correct form. He must do so in a new case. This means he should not include the case number of this case on those forms. I will direct the Clerk’s Office to send Quezada the necessary forms with this order. I note that Quezada’s petition indicates that he has not exhausted in state court any claim related to the petition. See Petition, ECF No. 1-1 at 3, 10, 11. Therefore, even if filed correctly, his petition likely would not present any viable claim. There is no indication that Quezada has ever initiated a state-court action relative to his petition in this case. Id. “[A] state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). The exhaustion requirement gives state courts the initial opportunity to correct constitutional violations. See id. To exhaust a claim, a petitioner must fairly present the claim to the highest

available state court and give that court the opportunity to address and resolve it. Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard, 404 U.S. at 275); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). Given that Quezada drafted his petition using a state-court form, it is possible that he meant to initiate a state-court action rather than this federal-court action. If that is the case, Quezada should be sure to send his petition (on a state-court form) to the appropriate state court, and not to this federal court. I THEREFORE ORDER that this action is DISMISSED without prejudice. I FURTHER ORDER that, as reasonable jurists would not find the rulings in this order to be debatable, Quezada is denied a certificate of appealability. I FURTHER ORDER the Clerk of the Court to:

- ENTER JUDGMENT dismissing this action without prejudice and - DIRECT INFORMAL ELECTRONIC SERVICE upon the respondents under Rule 4 of the Rules Governing Section 2254 Cases by adding Nevada Attorney General Aaron D. Ford as counsel for the respondents and sending to his office a notice of electronic filing of the petition (ECF No. 1-1) and this order. - SEND Quezada a copy of his petition (ECF No. 1-1), a copy of the court’s form Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a ] Person in State Custody (Not Sentenced to Death) Packet, and a copy of the court’s form IFP Application to Proceed in Forma Pauperis (Inmate Packet). 3 Dated: December 18, 2024. 5 □ ANDREW P. GORDON 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 1]