Bank v. Elworth-Winner

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

STEVEN J. BANK, Case No.: 2:21-cv-01218-JAD-VCF

Petitioner

Order Dismissing Action v.

ANN ELWORTH-WINNER,

Respondent

Petitioner Steven J. Bank filed this pro se petition for writ of habeas corpus under 28 10 U.S.C. § 2254 but failed to pay the $5.00 filing fee or submit a completed application to proceed in forma pauperis. As a result, this case has not been properly commenced.

It also appears that this case is defective because petitioner has not exhausted his state- court remedies. A federal court will not grant a state prisoner’s petition for habeas relief until the prisoner has exhausted his available state remedies for all claims raised.1 A petitioner must give the state courts a fair opportunity to act on each of his claims before he presents those claims in a federal habeas petition.2 A claim remains unexhausted until the petitioner has given the highest available state court the opportunity to consider the claim through direct appeal or state collateral review proceedings.3 Bank is in pretrial detention and challenges the evidence against him in a Las Vegas Municipal Court traffic case. While the procedural posture is not entirely clear, he

Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b).

2 O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995).

See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). to a challenge to the viability of his case in that court and states that he filed that motion o June 22, 2021. He does not state that that motion has been resolved or that he has pursued a state habeas corpus action. Therefore, it appears this federal petition is also unexhausted and premature.

IT IS THEREFORE ORDERED that this federal petition IS DISMISSED without 6]| prejudice to petitioner filing a new federal habeas petition, in a new case with a new case number and a new, completed application to proceed in forma pauperis with the required financial information or the $5.00 filing fee.

IT IS FURTHER ORDERED that the Clerk is directed to FILE the petition [ECF No. 1- 1].

IT IS FURTHER ORDERED that a certificate of appealability 1s denied because jurists of reason would not disagree with this outcome.

IT IS FURTHER ORDERED that the Clerk is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE.

Dated: July 29, 2021 “inte Le US. District Judge Tanifer A. Dorsey