Gibbs v. Najera ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 JAMEL GIBBS, Case No. 2:22-cv-01567-RFB-VCF 10 Petitioner, Order Dismissing Petition without Prejudice, Denying Application to 11 v. Proceed in Forma Pauperis, and 12 Denying Certificate of Appealability GABRIELA NAJERA, et al., 13 Respondents. 14 15 Jamel Gibbs has submitted a pro se 28 U.S.C. § 2254 petition for writ of habeas 16 corpus. (ECF Nos. 1-1, 1-2). He has paid the filing fee, therefore, his application to 17 proceed in forma pauperis is denied as moot. The court has reviewed the petition 18 pursuant to Rule 4 of the Rules Governing § 2254 Cases and dismisses the petition 19 without prejudice because his direct appeal is pending in state court. 20 Gibbs indicates on the face of his petition that he is currently appealing his state 21 judgment of conviction. (ECF No. 1-1 at 1.) A federal court will not grant a state prisoner’s 22 petition for habeas relief until the prisoner has exhausted available state remedies for all 23 claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). In his federal 24 petition, Gibbs sets forth a single claim that his counsel rendered ineffective assistance. 25 (ECF No. 1-2.) Generally, someone challenging his state-court judgment of conviction 26 pursues a direct appeal first, followed possibly by a state postconviction petition. Here, 27 the court takes judicial notice of the Nevada state appellate docket, which reflects that 1 || of Appeals rejected the ineffective-assistance-of-counsel claim he seeks to raise in 2 || federal court. Nevada Court of Appeals Case No. 84569. However, he also states that his 3 || direct appeal is currently pending before the Nevada Supreme Court. (ECF No. 1-1 at 1; 4 || Nevada Supreme Court Case No. 83672.) The state appellate docket shows that briefing 5 || was recently completed for Gibbs’ direct appeal. “When, as in the present case, an appeal 6 || of a state criminal conviction is pending, a would-be habeas corpus petitioner must await 7 || the outcome of his appeal before his state remedies are exhausted, even where the issue 8 || to be challenged in the writ of habeas corpus has been finally settled in the state courts.” 9 || Sherwood v. Tomkins, 716 F.2d 632, 634 (9" Cir. 1983) The decision on appeal could 10 || result in the reversal of Gibbs’ conviction on some other ground, rendering this action 11 || moot. Accordingly, this federal petition is dismissed without prejudice. 12 IT IS THEREFORE ORDERED that petitioner’s application to proceed in forma 13 || pauperis (ECF No. 1) is DENIED as moot. 14 IT IS FURTHER ORDERED that the Clerk of Court detach and file the petition 15 || (ECF No. 1-1). 16 IT |S FURTHER ORDERED that the petition is DISMISSED without prejudice as 17 || set forth in this order. 18 IT IS FURTHER ORDERED that a certificate of appealability is denied. 19 IT IS FURTHER ORDERED that the Clerk enter judgment accordingly and close 20 || this case. 21 39 DATED: 7 April 2023. 23 c < 24 RICHARD F. BOULWARE, II 35 UNITED STATES DISTRICT JUDGE 26 27 28