Blandino v. State of Nevada ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 KIM BLANDINO, Case No. 2:19-cv-00932-RFB-BNW 10 Petitioner, ORDER v. 11 STATE OF NEVADA, et al., 12 Respondents. 13 14 Petitioner Kim Blandino has filed a pro se habeas corpus petition (ECF No. 1). 15 Blandino states in his petition that he has been charged with extortion in the Eighth 16 Judicial District Court in Clark County, Nevada and that his bail is excessive. He also 17 filed a subsequent motion in which he states that while he was on house arrest, he was 18 taken back into custody on July 3, 2009, without bail (ECF No. 4). While not entirely 19 clear, it appears that Blandino was taken back into custody for violating his house arrest 20 contract (see ECF No. 2, pp. 6-9, ECF No. 4). The petition shall be dismissed without 21 prejudice because Blandino has not presented his claims to the highest Nevada state 22 court. 23 A federal court will not grant a state prisoner’s petition for habeas relief until the 24 prisoner has exhausted his available state remedies for all claims raised. Rose v. 25 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state 26 courts a fair opportunity to act on each of his claims before he presents those claims in 27 a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the ' petitioner has given the highest available state court the opportunity to consider the 2 claim through direct appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). Here, Blandino states in his motion dated July 4 that he was taken back into 8 custody on July 3 (ECF No. 4). The court takes judicial notice of the fact that Blandino did not first exhaust his state-court remedies. Accordingly, this federal petition shall be 8 dismissed without prejudice. 9 IT IS THEREFORE ORDERED that the petition is DISMISSED without prejudice "0 as set forth in this order. " IT IS FURTHER ORDERED that a certificate of appealability is DENIED. "2 IT IS FURTHER ORDERED that petitioner's two emergency motions for release 'S on federal bail (ECF Nos. 2 and 4) are both DENIED as moot. 4 IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and " close this case. 16 17 DATED: 9 August 2019. 4 < 18 19 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28