Quezada v. Southern Desert Correctional Center

Opinion

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ANDY QUEZADA, Case No.: 2:24-cv-02308-APG-DJA

5 Petitioner, Order Dismissing Action

6 v.

7 RONALD OLIVER, et al.,

8 Respondents.

9 10 This action was initiated pro se by Andy Quezada on December 12, 2024 as a petition for 11 a writ of habeas corpus. Quezada has not paid the $5 filing fee and he has not applied to proceed 12 in forma pauperis. And his habeas petition (ECF No. 1-1) is not on a form recognized by this 13 court; rather, it is on a form apparently meant for filing in state court. See Local Rules LSR 1-1, 14 1-2, 3-1. I will dismiss this action, without prejudice, for these reasons. 15 If Quezada wishes to attempt to proceed with this action, he must submit a petition for 16 writ of habeas corpus on the correct federal-court form, and he must either pay the $5 filing fee 17 or file an application to proceed in forma pauperis using the correct form. He must do so in a 18 new case. This means he should not include the case number of this case on those forms. I will 19 direct the Clerk’s Office to send Quezada the necessary forms with this order. 20 I note that Quezada’s petition indicates that he has not exhausted in state court any claim 21 related to the petition. See Petition, ECF No. 1-1 at 3, 10, 11. Therefore, even if filed correctly, 22 his petition likely would not present any viable claim. There is no indication that Quezada has 23 ever initiated a state-court action relative to his petition in this case. Id. “[A] state prisoner must 1 normally exhaust available state judicial remedies before a federal court will entertain his 2 petition for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275 (1971) (citations omitted). The 3 exhaustion requirement gives state courts the initial opportunity to correct constitutional 4 violations. See id. To exhaust a claim, a petitioner must fairly present the claim to the highest

5 available state court and give that court the opportunity to address and resolve it. Duncan v. 6 Henry, 513 U.S. 364, 365 (1995) (citing Picard, 404 U.S. at 275); Keeney v. Tamayo-Reyes, 504 7 U.S. 1, 10 (1992). Given that Quezada drafted his petition using a state-court form, it is possible 8 that he meant to initiate a state-court action rather than this federal-court action. If that is the 9 case, Quezada should be sure to send his petition (on a state-court form) to the appropriate state 10 court, and not to this federal court. 11 I THEREFORE ORDER that this action is DISMISSED without prejudice. 12 I FURTHER ORDER that, as reasonable jurists would not find the rulings in this order 13 to be debatable, Quezada is denied a certificate of appealability. 14 I FURTHER ORDER the Clerk of the Court to:

15 - ENTER JUDGMENT dismissing this action without prejudice and 16 CLOSE THIS CASE. 17 - DIRECT INFORMAL ELECTRONIC SERVICE upon the 18 respondents under Rule 4 of the Rules Governing Section 2254 Cases by adding 19 Nevada Attorney General Aaron D. Ford as counsel for the respondents and 20 sending to his office a notice of electronic filing of the petition (ECF No. 1-1) and 21 this order. 22 - SEND Quezada a copy of his petition (ECF No. 1-1), a copy of the court’s 23 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 2 court’s form IFP Application to Proceed in Forma Pauperis (Inmate Packet). 3 Dated: December 18, 2024. 4 5 □ ANDREW P. GORDON 6 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23