Gorman v. Nevada Department of Corrections ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 RICKY LEE GORMAN, Case No. 2:23-cv-00170-MMD-NJK 7 Petitioner, ORDER 8 v. 9 NEVADA DEPARTMENT OF 10 CORRECTIONS, et al., 11 Respondents. 12 13 Petitioner Ricky Lee Gorman has submitted a pro se petition for a writ of habeas 14 corpus under 28 U.S.C. § 2254. (ECF No. 1-1 (“Petition”)).1 However, he has neither paid 15 the $5.00 filing fee nor submitted a completed application to proceed in forma pauperis 16 with the required inmate account statements for the past six months and financial 17 certificate. See 28 U.S.C. § 1915(a)(2); LSR 1-2. This action is therefore subject to 18 dismissal without prejudice as improperly commenced. 19 Moreover, Gorman indicates in his Petition that he is currently appealing his state- 20 court judgment of conviction. (Id. at 5.) A federal court will not grant a state prisoner’s 21 petition for habeas relief until the prisoner has exhausted available state remedies for all 22 claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must 23 give the state courts a fair opportunity to act on each of the claims before she or he 24 presents those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 25 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains 26 27 1Gorman uses his pro se form for a 28 U.S.C. § 2241 habeas corpus petition, but he challenges his state-court judgment of conviction on federal constitutional grounds. 28 Thus, the Court construes the Petition as one brought under § 2254. 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. See 3 || Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 4 || 376 (9th Cir. 1981). 5 In his Petition, Gorman argues he was deprived of his constitutional speedy trial 6 || and due process rights. (/d. at 2.) He also states that his direct appeal is currently pending 7 || before the Nevada Supreme Court as Case No. 85429. (/d. at 5.) The Court takes judicial 8 || notice of the Nevada state appellate docket, which reflects that briefing is in progress on 9 || Gorman’s direct appeal. Thus, he has not yet exhausted his state-court remedies. 10 || Further, the decision on appeal and on any state postconviction petition could render this 11 || action moot. Accordingly, the Petition is dismissed without prejudice. 12 It is therefore ordered that the Clerk of Court detach and file the petition (ECF No. 13 || 1-1). 14 It is further ordered that the petition is dismissed without prejudice as set forth in 15 || this order. 16 It is further ordered that a certificate of appealability is denied. 17 It is further ordered that the Clerk of Court send Gorman one copy of the petition 18 || (ECF No. 1-1). 19 It is further ordered that the Clerk of Court enter judgment accordingly and close 20 || this case. 21 DATED Day of March 2023. 22 24 □□□□□□□□□□□□□□□□□□□□□□□□□□ 35 CHIEF UNITED STATES DISTRICTJUDGE 26 27 28