Chaiyakul v. Warden of High Desert

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA CHUCK CHAIYAKUL, Case No.: 2:21-cv-01667-APG-VCF

Petitioner

Order v. WARDEN OF HIGH DESERT, et al.,

Respondents Chuck Chaiyakul has submitted a pro se petition for writ of habeas corpus under 28 10 U.S.C. § 2254 (ECF No. 1-1) and he has paid the filing fee (ECF No. 6). I dismiss the petition without prejudice as unexhausted.

A federal court will not grant a state prisoner’s petition for habeas relief until the prisoner has exhausted available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of the claims before she or he presents those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). 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. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981).

In his federal petition, Chaiyakul sets forth a single ground of ineffective assistance of counsel. ECF No. 1-1, p. 3. He also indicates on the face of his petition that his appeal from the denial of his state postconviction habeas corpus petition is currently pending before the Nevada Supreme Court. Jd. at 4; see also Nevada Supreme Court Case No. 83822. Thus, he has not yet exhausted his state-court remedies. Further, the decision on his state petition could render this action moot. Accordingly, this federal petition is dismissed without prejudice as unexhausted.

I THEREFORE ORDER the Clerk to detach and file the petition (ECF No. 1-1).

I FURTHER ORDER that the petition is DISMISSED without prejudice.

I FURTHER ORDER that a certificate of appealability is DENIED.

I FURTHER ORDER the Clerk to send petitioner one copy of the filing at ECF No. 1-1. I FURTHER ORDER the Clerk to enter judgment accordingly and close this case.

Dated: December 1, 2021

CG 2

US. District Judge Andrew P. Gordon 1]