Ruiz v. Elko County Jail

• Court: District Court, D. Nevada
• Decided: August 25, 2023
• Docket: 3:23-cv-00354
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 VICTOR RUIZ, Case No. 3:23-cv-00354-MMD-CSD

7 Petitioner, ORDER v. 8

9 ELKO COUNTY JAIL, et al.,

10 Respondents.

11 12 Pro se Petitioner Victor Ruiz has filed a Petition for Writ of Habeas Corpus under 13 28 U.S.C. § 2254. (ECF No. 1-1 (“Petition”).) Ruiz did not properly commence this habeas 14 action by either paying the standard $5.00 filing fee or filing a complete application for 15 leave to proceed in forma pauperis (“IFP”). On July 18, 2023, this Court gave Ruiz until 16 September 1, 2023, to either pay the $5 filing fee or submit a complete IFP application. 17 (ECF No. 3.) On July 31, 2023, Ruiz submitted a new IFP application. (ECF No. 4.) 18 However, it was not clear that his financial certificate had been signed by an authorized 19 prison official (see id. at 4), and he did not include a copy of his account statement. 20 Regarding his account statement, Ruiz requested that the Court “call and get it faxed” 21 because “its becoming a hassle to get that information.” (ECF No. 4-1 at 1.) This Court 22 indicated that it was not inclined to waive any requirements regarding Ruiz’s IFP 23 application. Instead, the Court gave Ruiz one more chance to comply. (ECF No. 5.) On 24 August 23, 2023, Ruiz again filed a deficient IFP application, explaining that the Elko 25 County Detention Center, where he is currently housed, refuses to provide a six-month 26 account statement for him. (ECF Nos. 6, 6-1.) This Court appreciates that some county 27 1 a regulated system for providing IFP documents to prisoners. However, because Ruiz’s 2 Petition is entirely unexhausted, as is discussed below, this Court declines to give Ruiz 3 another chance to get his six-month account statement and instead dismisses the Petition 4 without prejudice. 5 According to Ruiz’s Petition, on May 23, 2023, a judgment of conviction was 6 entered in the Fourth Judicial District Court for the State of Nevada, convicting Ruiz of 7 conspiracy to commit theft. (ECF No. 1-1 at 2.) Ruiz alleges that he appealed his judgment 8 of conviction and that his appeal was decided on July 7, 2023. (Id. at 1.) Ruiz also alleges 9 that he filed a state habeas petition, his state habeas petition was denied by the state 10 court, he appealed the denial of that petition, and that appeal was decided on July 7, 11 2023. (Id.) Although the Fourth Judicial District Court for the State of Nevada does not 12 have online docket records, meaning that this Court is unable to verify Ruiz’s state court 13 information, this Court finds this timeline questionable. First, Ruiz’s judgment of conviction 14 was only entered three months ago, and the appellate process takes considerable time. 15 Second, a search of the Nevada state appellate courts’ docket reflects that Ruiz has not 16 sought appellate review in any capacity. 17 Habeas Rule 4 requires federal district courts to examine a habeas petition and 18 order a response unless it “plainly appears” that the petitioner is not entitled to relief. This 19 rule allows courts to screen and dismiss petitions that are patently frivolous, vague, 20 conclusory, palpably incredible, false, or plagued by procedural defects. See Valdez v. 21 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Hendricks v. Vasquez, 908 F.2d 490, 22 491 (9th Cir. 1990) (collecting cases). Because a federal habeas petitioner incarcerated 23 by a state must give state courts a fair opportunity to act on each of his claims before he 24 presents them in a federal habeas petition, federal courts will not consider his petition for 25 habeas relief until he has properly exhausted his available state remedies for all claims 26 raised. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998). A claim remains 27 2 1 unexhausted until the petitioner has given the highest available state court the opportunity 2 to consider the claim through direct appeal or state collateral-review proceedings. 3 O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Peterson v. Lampert, 319 F.3d 4 1153, 1158 (9th Cir. 2003) (en banc). To properly exhaust state remedies on each claim, 5 the habeas petitioner must “present the state courts with the same claim he urges upon 6 the federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). 7 Ruiz has not alleged or demonstrated that he has fully exhausted his state court 8 remedies. See, e.g., Arevalo v. Hennessy, 882 F.3d 763, 764-67 (9th Cir. 2018) (finding 9 that a California petitioner properly exhausted his state remedies by filing two motions in 10 the trial court, a habeas petition in the court of appeal, and a habeas petition in the state 11 supreme court, each of which was denied); see also Braden v. 30th Judicial Circuit Court 12 of Kentucky, 410 U.S. 484, 489-92 (1973) (holding that pretrial detainee in state custody 13 must exhaust available state court remedies for federal court to consider detainee’s 14 constitutional claims). As such, Ruiz has outstanding avenues of state court relief, 15 including, but not limited to, motions, petitions for habeas relief, petitions for mandamus 16 relief, and appeals to Nevada’s appellate courts. As a matter of simple comity, this Court 17 is not inclined to intervene prior to giving the Nevada appellate courts an opportunity to 18 redress any violation of Ruiz’s constitutional rights. See Coleman v. Thompson, 501 U.S. 19 722, 731 (1991) (explaining that the exhaustion requirement is “grounded in principles of 20 comity; in a federal system, the States should have the first opportunity to address and 21 correct alleged violations of state prisoner’s federal rights”). Accordingly, the Petition is 22 entirely unexhausted, warranting dismissal.1 23 It is therefore ordered that the Petition (ECF No. 1-1) is dismissed without 24 prejudice. A certificate of appealability is denied, as jurists of reason would not find 25 dismissal of the Petition to be debatable or wrong.

26 1If necessary, Ruiz may file a new federal habeas petition in a new action upon 27 exhaustion of his state court remedies. 3 1 It is further ordered that the motions for leave to proceed in forma pauperis (ECF 2 || Nos. 1, 4, 6) are denied as incomplete. 3 It is further ordered that the Clerk of Court: (1) file the Petition (ECF No. 1-1); (2) 4 || add Nevada Attorney General Aaron D. Ford as counsel for Respondents; (3) informally 5 || serve Respondents by sending a notice of electronic filing to the Nevada Attorney 6 || General's Office of the Petition (ECF No. 1-1), this order, and all other filings in this matter 7 || by regenerating the notices of electronic filing; (4) enter final judgment dismissing this 8 || action without prejudice; and (5) close this case. 9 DATED THIS 25 Day of August 2023.

11 MIRANDA M. DU 12 CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2No response is required from Respondents other than to respond to any orders 27 || of a reviewing court. 28 □