1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 ***

6 BRAXTON CHEYANNE GARCIA, Case No. 3:21-cv-00220-MMD-WGC

7 Petitioner, ORDER v. 8 WASHOE COUNTY NEVADA, et al., 9 Respondents. 10 11 This habeas matter is before the Court on pro se Petitioner Braxton Cheyanne 12 Garcia’s Application to Proceed In Forma Pauperis (ECF No. 1) and for an initial review 13 under the Rules Governing Section 2254 Cases.1 For the reasons discussed below, the 14 Court orders Garcia to show cause in writing within 30 days as to why this action should 15 not be dismissed without prejudice for failure to exhaust his claims in state court.2 16 Garcia challenges a conviction and sentence imposed by the Second Judicial 17 District Court for Washoe County (“state court”).3 Garcia’s petition indicates that he pled 18 guilty to one count of child abuse with intent to cause substantial bodily harm. (ECF No. 19 1-1 at 1.) Garcia represents that his judgment of conviction was entered on April 22, 2021 20 and that he was sentenced to 30 to 160 months. (Id.) Garcia further represents that he did 21 not file an appeal to the Nevada appellate courts regarding his conviction and has not 22

23 1All references to a “Habeas Rule” or the “Habeas Rules” in this order identify the Rules Governing Section 2254 Cases in the United States District Courts. 24 2Garcia has also filed a motion for appointment of counsel, which the Court defers 25 consideration of until after he has responded to the order to show cause. 26 3The Court takes judicial notice of the online docket records of the Second Judicial 27 District Court and Nevada appellate courts, which may be accessed by the public online at: http://www.washoecourts.com and 28 www.caseinfo.nvsupremecourt.us/public/caseSearch.do 1 previously filed any petitions, applications, or motions with respect to this judgment in any 2 state or federal court. (Id.) 3 Under Habeas Rule 4, the assigned judge must examine the habeas petition and 4 order a response unless it “plainly appears” that the petitioner is not entitled to relief. 5 See Valdez v. Montgomery,

(9th Cir. 2019). This rule requires courts 6 to screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably 7 incredible, false, or plagued by procedural defects. See Boyd v. Thompson,

(9th Cir. 1998); Hendricks v. Vasquez,

(9th Cir. 1990) 9 (collecting cases). 10 Here, it appears likely that Garcia’s petition is wholly unexhausted in state court 11 and is subject to dismissal without prejudice. A state prisoner first must exhaust state court 12 remedies on a habeas claim before presenting that claim to the federal courts. 28 U.S.C. 13 § 2254(b)(1)(A). This exhaustion requirement ensures that the state courts, as a matter of 14 comity, will have the first opportunity to address and correct alleged violations of federal 15 constitutional guarantees. See Coleman v. Thompson,

(1991). “A 16 petitioner has exhausted his federal claims when he has fully and fairly presented them to 17 the state courts.” Woods v. Sinclair,

(9th Cir. 2014) (citing O’Sullivan 18 v. Boerckel,

(1999) (“Section 2254(c) requires only that state 19 prisoners give state courts a fair opportunity to act on their claims.”)). To satisfy 20 the exhaustion requirement, a claim must have been raised through one complete round 21 of either direct appeal or collateral proceedings to the highest state court level of review 22 available. See O’Sullivan,

; Peterson v. Lampert,

, 1156 23 (9th Cir. 2003) (en banc); Vang v. Nevada,

(9th Cir. 2003). A properly 24 exhausted claim “‘must include reference to a specific federal constitutional guarantee, as 25 well as a statement of the facts that entitle the petitioner to relief.’” Woods, 764 26 F.3d at 1129 (quoting Gray v. Netherland,

(1996)); Castillo v. 27 McFadden,

(9th Cir. 2005) (fair presentation requires both the operative 28 facts and federal legal theory upon which a claim is based). 1 Petitioner was sentenced by the state court on April 2021, less than three months 2 ago. The petition concedes that he has not filed a direct appeal or initiated a state habeas 3 action. Thus, it is virtually certain that he has not exhausted any federal constitutional claim 4 relative to his judgment of conviction, and that this federal habeas corpus action is 5 premature. Accordingly, Petitioner will be required to show cause why this action should 6 not be dismissed because of his failure to exhaust any claim in state court. 7 It is therefore ordered that Petitioner must file within 45 days of the date of this 8 order, a “Response to Order to Show Cause,” in writing, showing cause why this action 9 should not be dismissed without prejudice based on his failure to exhaust his claims in 10 Nevada Courts. Petitioner’s response must be factually detailed, and, where possible, 11 supported by exhibits. 12 If Petitioner fails to timely and fully comply with this order, the Court will dismiss this 13 action without prejudice and without further advance notice. 14 DATED THIS 12th Day of July 2021.

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17 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28