1 2 3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * * 6 MICHAEL THOMAS DAVITT, Case No. 3:22-cv-00381-MMD-CSD

7 Petitioner, ORDER

8 v. 9 ELKO COUNTY SHERIFF, 10 Respondent. 11 12 Michael Thomas Davitt has submitted a pro se

habeas corpus 13 petition. (ECF No. 1-1.) But on initial review, the Court finds that Davitt’s claims appear 14 unexhausted, and that federal abstention is required, so the petition is dismissed without 15 prejudice. 16 Davitt states that he was arrested on July 1, 2022, and is in the custody of the Elko 17 County Sheriff. (Id. at 2.) In his petition for federal habeas relief, he alleges that he was 18 not brought before a judge within 72 hours, that he was denied a phone call to post bond 19 for 33 days, and that his public defenders are rendering ineffective assistance of counsel. 20 (Id. at 6.) Because a federal habeas petitioner incarcerated by a state must give state 21 courts a fair opportunity to act on each of his claims before he presents them in a federal 22 habeas petition, federal courts will not consider his petition for habeas relief until he has 23 properly exhausted his available state remedies for all claims raised. See Boyd v. 24 Thompson,

(9th Cir. 1998). A claim remains unexhausted until the 25 petitioner has given the highest available state court the opportunity to consider the claim 26 through direct appeal or state collateral-review proceedings. See O’Sullivan 27 v. Boerckel,

(1999); Peterson v. Lampert,

(9th 1 petitioner must “present the state courts with the same claim he urges upon the federal 2 court.” Picard v. Connor,

(1971). 3 The federal constitutional implications of a claim, not just issues of state law, must 4 have been raised in the state court to achieve exhaustion. See Woods v. Sinclair, 764

(9th Cir. 2014); Castillo v. McFadden,

(9th Cir. 6 2005) (finding that fair presentation requires both the operative facts and federal legal 7 theory upon which a claim is based). A claim is not exhausted unless the petitioner has 8 presented to the state court the same operative facts and legal theory upon which his 9 federal claim is based. See Bland v. California Dep’t of Corrections,

, 1473 10 (9th Cir. 1994). 11 Davitt states that he has exhausted this petition. However, the Court takes judicial 12 notice of the fact that he submitted this petition less than two months after he was 13 arrested, and it would be impossible to pursue relief at the state district court and state 14 appellate levels in that short time. The Court also takes judicial notice of the Nevada 15 appellate courts’ online records, which do not show any appeal from a denial of a state § 16 2241 habeas petition. This alone bars this Court’s consideration of his federal habeas 17 petition. 18 But even if the Court assumed that Davitt has exhausted his claims, his petition 19 seeks federal judicial intervention in a pending state criminal proceeding, which is simply 20 not available to him. Cf., e.g., Sherwood v. Tomkins,

(9th Cir. 1983); 21 Carden v. Montana,

(9th Cir. 1980). The comity-based Younger 22 abstention doctrine prevents federal courts from enjoining pending state court criminal 23 proceedings, even if there is an allegation of a constitutional violation, unless there is an 24 extraordinary circumstance that creates a threat of irreparable injury. See Younger v. 25 Harris,

(1971). 26 The United States Supreme Court has instructed that “federal-court abstention is 27 required” when there is “a parallel, pending state criminal proceeding.” Sprint Commc’ns, 1 || 965 (9th Cir. 2004) (federal courts generally abstain from granting any relief that would 2 || interfere with pending state judicial proceedings). Injuries are only irreparable if the threat 3 || to a petitioner's federally protected rights cannot be eliminated through his defense of the 4 || criminal case. See Younger,

. 5 This case does not present extraordinary circumstances. Davitt challenges the 6 || alleged delay in posting bond and argues that his counsel is rendering ineffective 7 || assistance. (ECF No. 1-1 at 6.) Defendants in state criminal proceedings routinely allege 8 || that state criminal proceedings violate their constitutional rights, including fundamental 9 || rights, which makes this a regular occurrence, not an extraordinary circumstance. Davitt’s 10 || situation is no different in substance from that of any criminal defendant facing the 11 || potential loss of constitutional rights—including the most fundamental right, to liberty—in 12 || a pending criminal prosecution. He faces no extraordinary or irreparable injuries, so 13 || federal abstention is required. It does not appear that dismissal of this action without 14 || prejudice will materially impact the analysis of any issue in a later-filed habeas proceeding 15 || or otherwise result in substantial prejudice. 16 The Clerk of Court is directed to file the petition for writ of habeas corpus. (ECF 17 || No. 1-1.) 18 It is further ordered that the petition is dismissed without prejudice. 19 It is further ordered that the Clerk of Court direct informal electronic service upon 20 || Respondents by adding Nevada Attorney General Aaron D. Ford as counsel for 21 || Respondents and sending a notice of electronic filing to his office for the petition and this 22 || order. No response is required from Respondents other than to respond to any orders of 23 || a reviewing court. 24 The Clerk of Court is further directed to enter final judgment dismissing this action 25 || and close this case. 26 DATED THIS 2"¢ Day of November mm 27 MIRANDA M. DU 28 CHIEF UNITED STATES DISTRICT JUDGE