Williams v. Nevada Department of Corrections

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 TERRANCE EUGENE WILLIAMS, Case No. 3:21-cv-00187-HDM-CLB 6 Petitioner, 7 v. ORDER

CORRECTIONS, et al., 9 Respondents. 10 11 This habeas matter is before the Court on Petitioner Terrance 12 Eugene Williams’s failure to comply with prior Orders (ECF Nos. 7, 13 10, 12, 17.) Also before the Court are Petitioner’s Motions to 14 Submit Evidence (ECF Nos. 18, 20, 21, 22, 23, 24, 28, 31, 32, 33, 15 35) and miscellaneous Motions (ECF Nos. 29, 34, 36.) 16 Williams initiated this federal habeas matter without paying 17 the $5 filing fee or submitting an application for leave to proceed 18 in forma pauperis (“IFP”). In addition, Williams did not file his 19 petition on the Court’s required 28 U.S.C. § 2254 petition form. 20 On May 24, 2021, the Court entered an order directing Williams to 21 file his petition on the Court’s required 28 U.S.C. § 2254 petition 22 form and to either pay the standard five dollar ($5.00) filing fee 23 or file a complete IFP application. ECF No. 4. On June 9, 2021, 24 Petitioner filed a Motion for Appointment of Counsel (ECF No. 5) 25 and an incomplete IFP application ECF No. 6. On July 6, 2021, the 26 Court instructed Petitioner to file an amended petition on the 27 Court’s form within 30 days and file a copy of his inmate trust 28 account statement for the six-month period prior to filing, or 1 alternatively pay the $5 filing fee within 30 days. ECF No. 7. 2 Petitioner failed to file a complete IFP application or pay the 3 filing fee and failed to file an amended petition on the required 4 form. On September 29, 2021, the Court again instructed Petitioner 5 to file an amended petition on the Court’s form within 30 days and 6 file a copy of his inmate trust account statement for the six- 7 month period prior to filing, or alternatively pay the $5 filing 8 fee within 30 days. ECF No. 10. In the September 29, 2021 order, 9 the Court attached a blank 28 U.S.C. § 2241 form in error. 10 On November 18, 2021, the Court sent a blank 28 U.S.C. § 2254 11 petition form, instructed him to file an amended petition, and 12 again instructed Williams to file a copy of his inmate trust 13 account statement for the six-month period prior to filing within 14 45 days. ECF No. 12. Petitioner did not comply. On February 3, 15 2022, the Court again instructed Petitioner to file an amended 16 petition on the required form and file a copy of his inmate trust 17 account statement for the six-month period prior to filing or pay 18 the $5 filing fee. ECF No. 17. In each order, the Court warned 19 that his failure to timely and fully comply would result in a 20 dismissal of this action without prejudice and without further 21 advance notice. See ECF Nos. 7, 10, 12, 17. 22 To date, Petitioner has not filed a copy of his inmate trust 23 account statement for the six-month period prior to filing, or 24 alternatively paid the $5 filing fee. 25 In addition, under the Antiterrorism and Effective Death 26 Penalty Act (“AEDPA”), a habeas petitioner first must exhaust state 27 court remedies on a claim before presenting that claim to the 28 federal courts. 28 U.S.C. § 2254(b)(1)(A). The exhaustion 1 requirement is meant to give state courts the first opportunity to 2 review and correct alleged violations of federal constitutional 3 guarantees as a matter of federal-state comity. Coleman v. 4 Thompson, 501 U.S. 722, 731 (1991). “A petitioner has exhausted 5 his federal claims when he has fully and fairly presented them to 6 the state courts.” Woods v. Sinclair, 764 F.3d 1109, 1129 (9th 7 Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 8 (1999)). Fair presentation requires a petitioner to present the 9 state courts with both the operative facts and the federal legal 10 theory upon which the claim is based. Woods, 764 F.3d at 1129 11 (claim “ ‘must include reference to a specific federal 12 constitutional guarantee, as well as a statement of the facts that 13 entitle the petitioner to relief’ ”) (quoting Gray v. Netherland, 14 518 U.S. 152, 162–63 (1996)). See also Castillo v. McFadden, 399 15 F.3d 993, 999 (9th Cir. 2005). To satisfy the exhaustion 16 requirement, a claim must have been raised through one complete 17 round of either direct appeal or collateral proceedings to the 18 highest state court level of review available. O’Sullivan, 526 19 U.S. at 844–45; Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir. 20 2003) (en banc). 21 Here, it appears that Petitioner has not exhausted his state 22 court remedies. Petitioner has not alleged or demonstrated that: 23 (1) each claim in his petition was presented to each level of 24 Nevada courts through to the Supreme Court of Nevada; (2) any 25 proceedings before the state appellate courts concluded with the 26 issuance of a remittitur or notice in lieu of a remittitur; and 27 (3) the state appellate courts addressed the merits of the claims. 28 Dismissal is appropriate. 1 IT IS THEREFORE ORDERED: 2 1. Petitioner Terrance Eugene Williams’s first amended 3 petition (ECF No. 19) is dismissed without prejudice based 4 on his failure to comply with this Court’s order and for 5 failure to exhaust his claims in state court. 6 2, Petitioner’s Motions to Submit Evidence (ECF Nos. 18, 20, 7 21, 22, 23, 24, 28, 31, 32, 33, 35), miscellaneous Motions 8 (ECF Nos. 29, 34, 36), and Application to Proceed in forma 9 pauperis (ECF No. 6) are denied as moot. 10 3.A certificate of appealability is denied as jurists of 11 reason would not find the Court’s dismissal of the petition 12 to be debatable or wrong. 13 4.Under Rule 4 of the Rules governing Section 2254 Cases, 14 the Clerk of the Court is directed to add Nevada Attorney 15 General Aaron D. Ford as counsel for respondents and 16 informally serve the Nevada Attorney General by directing 17 notice of electronic filing of this order to his office. 18 No response is required form respondents other than to 19 respond to any orders of a reviewing court. 20 5. The Clerk of the Court is instructed to enter final 21 judgment accordingly and close this case. 22 DATED: this 3rd day of June, 2022. 23 Sorat” SD Ht HOWARD D. MCKIBBEN 25 UNITED STATES DISTRICT JUDGE 26 27 28