Filed: Sep. 06, 2018
Latest Update: Sep. 06, 2018
Summary: ORDER RICHARD F. BOULWARE, II , District Judge . Before the court are the petition for a writ of habeas corpus (ECF No. 6), respondents' motion to dismiss (ECF No. 8), and petitioner's opposition (ECF No. 12). Also before the court are petitioner's motion for default (ECF No. 9), respondents' opposition (ECF No. 10), and petitioner's reply (ECF No. 11). Motion for Default Petitioner's motion for default argues that respondents filed their motion to dismiss late. On October 31, 2017, the c
Summary: ORDER RICHARD F. BOULWARE, II , District Judge . Before the court are the petition for a writ of habeas corpus (ECF No. 6), respondents' motion to dismiss (ECF No. 8), and petitioner's opposition (ECF No. 12). Also before the court are petitioner's motion for default (ECF No. 9), respondents' opposition (ECF No. 10), and petitioner's reply (ECF No. 11). Motion for Default Petitioner's motion for default argues that respondents filed their motion to dismiss late. On October 31, 2017, the co..
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ORDER
RICHARD F. BOULWARE, II, District Judge.
Before the court are the petition for a writ of habeas corpus (ECF No. 6), respondents' motion to dismiss (ECF No. 8), and petitioner's opposition (ECF No. 12). Also before the court are petitioner's motion for default (ECF No. 9), respondents' opposition (ECF No. 10), and petitioner's reply (ECF No. 11).
Motion for Default
Petitioner's motion for default argues that respondents filed their motion to dismiss late. On October 31, 2017, the court entered its order directing a response within forty-five (45) days.1 Respondents filed their motion to dismiss (ECF No. 6) on December 15, 2017, which is forty-five (45) days later. The motion to dismiss is timely, and petitioner's motion for default is without merit.2
Motion to Dismiss
Before a federal court may consider a petition for a writ of habeas corpus, the petitioner must exhaust the remedies available in state court. 28 U.S.C. § 2254(b). To exhaust a ground for relief, a petitioner must fairly present that ground to the state's highest court, describing the operative facts and legal theory, and give that court the opportunity to address and resolve the ground. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Anderson v. Harless, 459 U.S. 4, 6 (1982).
In this action, petitioner alleges that the prison is not applying credits toward his minimum term under the version of Nev. Rev. Stat. § 209.4465 that was in effect at the time he was sentenced. Respondents argue that petitioner never has presented this claim to the state courts. Petitioner counters that he has presented his claim through all levels of the administrative grievance procedure. The administrative grievance procedure is not sufficient to exhaust remedies when a state-court remedy is available. Nevada allows a post-conviction habeas corpus petition that challenges the computation of time. Nev. Rev. Stat. § 34.724(1).3 The Nevada Supreme Court has held meritorious a claim that is similar to petitioner's claim. See Williams v. State Dep't of Corr., 402 P.3d 1260 (Nev. 2017).4 The petition is completely unexhausted.
Reasonable jurists would not find the court's conclusion to be debatable or wrong, and the court will not issue a certificate of appealability.
IT THEREFORE IS ORDERED that petitioner's motion for default (ECF No. 8) is DENIED.
IT IS FURTHER ORDERED that respondents' motion to dismiss (ECF No. 6) is GRANTED. This action is DISMISSED without prejudice because petitioner has not exhausted his available state-court remedies. The clerk of the court shall enter judgment accordingly and close this action.
IT IS FURTHER ORDERED that a certificate of appealability will not issue.
