Ferguson v. Lombardo

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA William Edward Ferguson, Case No.: 2:21-cv-01658-JAD-NJK 4 Petitioner v. Order Denying Motion for Stay Order, Granting Motion for Leave to Amend, and Joe Lombardo, et al, Directing Petitioner to Show Cause Why This Case Should Not Be Dismissed 7 Respondents [ECF Nos. 3, 7] 9 William Ferguson initially brought this habeas corpus action under 28 U.S.C. § 2241 after a state jury had found him guilty of 7 counts of burglary, 2 counts of petit larceny, 1 count of attempted grand larceny, and 1 count of grand larceny but before the state district court entered its judgment of conviction.1 The state district court entered its judgment of conviction on October 25, 2021.2 Ferguson now has filed a motion for stay order,3 a motion for leave to amend,4 and an amended petition.5 I deny the motion for stay order as moot and grant the motion for leave to amend. I have also reviewed the amended petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Because it appears that Ferguson filed this action before exhausting his state-court remedies, I direct Ferguson to show cause why I should not dismiss this action.

21 1 ECF No. 1-1 at 1.

2 ECF No. 6 at 1.

3 ECF No. 3.

23 4 ECF No. 7.

5 ECF No. 6.

1 A. The motion to stay is moot.

2 In his motion for stay order, Ferguson asks me to stay the state district-court proceedings while this action is open. Ferguson incorrectly argues that filing a habeas corpus petition in federal court removes jurisdiction from the state courts. Additionally, he was trying to stop the state district court from entering its judgment of conviction, and that already has happened. His motion thus is moot.

7 B. Ferguson must show cause why this case should not be dismissed as premature.

8 In the amended petition, Ferguson states that he has appealed the judgment of conviction and that the appeal is pending.6 Ferguson must exhaust all of his potential remedies for all of his claims in the state courts before he can pursue a petition for a writ of habeas corpus in federal court.7 It appears that he has not exhausted any of his claims because his direct appeal still is pending.8 Ferguson will need to show cause why I should not dismiss this action for lack of exhaustion of the state-court remedies.

14 IT THEREFORE IS ORDERED that the motion for stay order [ECF No. 3] is DENIED as moot.

16 IT FURTHER IS ORDERED that the motion for leave to amend [ECF No. 7] is GRANTED. His amended petition [ECF No. 6] will be the operative one.

18 IT FURTHER IS ORDERED that petitioner must show cause in writing by January 7, 2022, why this court should not dismiss this action for failure to exhaust state-court ECF No. 6 at 1, 2.

23 7 28 U.S.C. § 2254(b).

8 See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983).

1}/remedies. If, by that deadline, petitioner fails to show cause in writing that this action should not be dismissed, the court will dismiss this action without prejudice.

3 Dated: November 22, 2021 pres USS. District Juided