Larue v. Cardenas ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 DEREK LARUE, Case No. 3:24-cv-00265-ART-CLB 5 Petitioner, Order Dismissing Petition without Prejudice and Closing Case 6 v. 7 ANGEL CARDENAS, 8 Respondent. 9 10 Derek Larue has submitted a pro se 28 U.S.C. § 2241 habeas corpus 11 petition. (ECF No. 1-1.) The application to proceed in forma pauperis is granted. 12 (ECF No. 1.) But on initial review, the Court finds that Larue’s claims appear 13 unexhausted, and that federal abstention is required, so the petition is 14 dismissed without prejudice. 15 It appears that Larue was arrested on a criminal matter before the Sixth 16 Judicial District Court (Humboldt County, Nevada) and was released from 17 custody on his own recognizance (“OR”) on or about July 3, 2023. (See ECF No. 18 1-2.) A notice of violation and incarceration filed May 21, 2024, indicates that 19 Larue was rearrested the day before pursuant to a warrant for failure to 20 appear. (See id.) The notice states that Larue was also booked for violation of 21 the conditions of his OR release. 22 In his petition for federal habeas relief, Larue alleges that he has not 23 received a hearing on the revocation of OR release in violation of his 24 constitutional rights. (ECF No. 1-1.) Because a federal habeas petitioner 25 incarcerated by a state must give state courts a fair opportunity to act on each 26 of his claims before he presents them in a federal habeas petition, federal 27 courts will not consider his petition for habeas relief until he has properly 1 Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998). A claim remains unexhausted 2 until the petitioner has given the highest available state court the opportunity 3 to consider the claim through direct appeal or state collateral-review 4 proceedings. O’Sullivan v. Boerckel, 526 U.S. 838, 844–45 (1999); Peterson v. 5 Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003) (en banc). To properly exhaust 6 state remedies on each claim, the habeas petitioner must “present the state 7 courts with the same claim he urges upon the federal court.” Picard v. Connor, 8 404 U.S. 270, 276 (1971). 9 The federal constitutional implications of a claim, not just issues of state 10 law, must have been raised in the state court to achieve exhaustion. Woods v. 11 Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014); Castillo v. McFadden, 399 F.3d 12 993, 999 (9th Cir. 2005) (fair presentation requires both the operative facts and 13 federal legal theory upon which a claim is based). A claim is not exhausted 14 unless the petitioner has presented to the state court the same operative facts 15 and legal theory upon which his federal claim is based. Bland v. California 16 Dep’t of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). 17 In an attempt to demonstrate that he exhausted his claim, Larue states 18 that there is “nothing to appeal.” (ECF No. 1-1 at 2-3.) But in order to exhaust, 19 he would need to first seek relief in the state courts. The Court takes judicial 20 notice of the fact that Larue was rearrested on May 20, 2024, and, as a 21 practical matter, he cannot have pursued a state pre-trial habeas petition in 22 such a short time. The Court also takes judicial notice of the Nevada appellate 23 courts’ online records, which do not show any appeal from a denial of a state § 24 2241 habeas petition. This alone bars this Court’s consideration of his federal 25 habeas petition. 26 But even if the Court assumed that Larue has exhausted his claims, his 27 petition seeks federal judicial intervention in a pending state criminal 1 716 F.2d 632, 634 (9th Cir. 1983); Carden v. Montana, 626 F.2d 82, 83–85 (9th 2 Cir. 1980). The comity-based Younger abstention doctrine prevents federal 3 courts from enjoining pending state court criminal proceedings, even if there is 4 an allegation of a constitutional violation, unless there is an extraordinary 5 circumstance that creates a threat of irreparable injury. Younger v. Harris, 401 6 U.S. 37, 53–54 (1971). 7 The United States Supreme Court has instructed that “federal-court 8 abstention is required” when there is “a parallel, pending state criminal 9 proceeding.” Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72 (2013) (emphasis 10 added); Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004) (federal courts 11 generally abstain from granting any relief that would interfere with pending 12 state judicial proceedings). Injuries are only irreparable if the threat to a 13 petitioner’s federally protected rights cannot be eliminated through his defense 14 of the criminal case. Younger, 401 U.S. at 46. 15 This case does not present extraordinary circumstances. Larue 16 challenges the revocation of his OR release as violating his constitutional 17 rights. (ECF No. 1-1.) Defendants in state criminal proceedings routinely allege 18 that state criminal proceedings violate their constitutional rights, including 19 fundamental rights. Larue’s situation is no different in substance from that of 20 any criminal defendant facing the potential loss of constitutional rights— 21 including the most fundamental right, to liberty—in a pending criminal 22 prosecution. He faces no extraordinary or irreparable injuries, so federal 23 abstention is required. It does not appear that dismissal of this action without 24 prejudice will materially impact the analysis of any issue in a later-filed habeas 25 proceeding or otherwise result in substantial prejudice. 26 It is therefore ordered that the application to proceed in forma pauperis 27 (ECF No. 1) is GRANTED. 1 It is further ordered that the Clerk of Court FILE the petition for writ of 2 || habeas corpus. (ECF No. 1-1.) 3 It is further ordered that the petition is DISMISSED without prejudice. 4 It is further ordered that the Clerk direct informal electronic service upon 5 || respondents by adding Nevada Attorney General Aaron D. Ford as counsel for 6 || respondents and sending a notice of electronic filing to his office for the petition 7 || and this order. No response is required from respondents other than to 8 || respond to any orders of a reviewing court. 9 It is further ordered that a certificate of appealability will not issue. 10 It is further ordered that the Clerk enter final judgment dismissing this 11 || action and close this case. 12 13 14 DATED THIS 22"4 day of July 2024. 15 16 en 17 / 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28