1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3

4 Christopher Gunn, Case No. 2:22-cv-01955-JAD-BNW

5 Petitioner Order Granting Motion to Reopen, 6 v. Screening the Petition, Dismissing the Petition, and Reclosing the Case 7 Attorney General State of Nevada, et al., [ECF Nos. 5, 7] 8 Respondents

9 Pro se Petitioner Christopher Gunn initiated this case by submitting a Petition for Writ of 10 11 Habeas Corpus1 on November 21, 2022, but he did not pay the $5 habeas filing fee or file an 12 application to proceed in forma pauperis (“IFP”).2 On November 30, 2022, I ordered Gunn to 13 either pay the filing fee or submit a complete IFP application with all required attachments by 14 January 13, 2023.3 Gunn was warned that a failure to comply would result in the dismissal of 15 this action without prejudice and without further advance notice.4 Because Gunn did not file a 16 completed IFP application, pay the filing fee, request an extension of time, or take any other 17 18 action to prosecute this case, I dismissed his petition without prejudice and closed this case.5 19 Gunn has now filed a motion to extend time, which I liberally construe as a motion to 20 reopen, and paid the $5 filing fee.6 Based on (1) Gunn submitting a copy of his brass slip 21 showing that he requested that the Nevada Department of Corrections transmit $5 from his 22 23 1 ECF No. 5. 24 2 See

(a); LSR 1-1, LSR 1-2. 25 3 ECF No. 3. 26 4

27 5 ECF No. 4. 28 6 ECF Nos. 7, 8. 1 2 Gunn’s filing fee, I find good cause to reopen this case and vacate my previous dismissal order 3 and judgment. However, on initial review under the Habeas Rules,7 I dismiss the petition 4 without prejudice as unexhausted and reclose this case. 5 Background 6 Gunn challenges a conviction and sentence imposed by the Eighth Judicial District Court 7 for Clark County in State of Nevada v. Chris Gunn, Case No. C-22-367422-1.8 On October 4, 8 2022, the state court entered a judgment of conviction for battery by strangulation. Gunn was 9 10 sentenced to 19 to 48 months in prison. A search of the Nevada state appellate courts’ docket 11 reflects that Gunn has not sought appellate review in any capacity. And a search of the Eighth 12 Judicial District Court’s docket reflects that Gunn has not sought post-conviction relief. 13 Discussion 14 Habeas Rule 4 requires federal district courts to examine a habeas petition and order a 15 response unless it “plainly appears” that the petitioner is not entitled to relief. This rule allows 16 courts to screen and dismiss petitions that are patently frivolous, vague, conclusory, palpably 17 18 incredible, false,9 or plagued by procedural defects.10 Because a federal habeas petitioner 19 incarcerated by a state must give state courts a fair opportunity to act on each of his claims 20 before he presents them in a federal habeas petition, federal courts will not consider his petition 21 22

23 7 All 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 8 I take judicial notice of the online docket records of the Eighth Judicial District Court and 25 Nevada appellate courts. The docket records may be accessed at: https://www.clarkcountycourts.us/Anonymous/default.aspx and 26 http://caseinfo.nvsupremecourt.us/public/caseSearch.do. 27 9 See Valdez v. Montgomery,

(9th Cir. 2019). 28 10 Hendricks v. Vasquez,

(9th Cir. 1990) (collecting cases). 1 2 raised.11 3 A claim remains unexhausted until the petitioner has given the highest available state 4 court the opportunity to consider the claim through direct appeal or state collateral-review 5 proceedings.12 To properly exhaust state remedies on each claim, the habeas petitioner must 6 “present the state courts with the same claim he urges upon the federal court.”13 The federal 7 constitutional implications of a claim, not just issues of state law, must have been raised in the 8 state court to achieve exhaustion.14 A claim is not exhausted unless the petitioner has presented 9 10 to the state court the same operative facts and legal theory upon which his federal claim is 11 based.15 12 Gunn admits that he has not filed a petition for habeas corpus in the state court,16 much 13 less appealed to the highest state court, as the exhaustion requirement mandates for his three 14 ineffective-assistance-of-counsel claims. This alone bars this court’s consideration of his federal 15 habeas petition. Accordingly, the petition will be dismissed without prejudice for lack of 16 exhaustion. If necessary, Gunn may file a new federal habeas petition—in a new case with a 17 18 new case number and a new filing fee or completed IFP application—upon exhaustion of his 19 state-court remedies. 20

21

22 11 See Boyd v. Thompson,

(9th Cir. 1998). 23 12 O’Sullivan v. Boerckel,

, 844–45 (1999); Peterson v. Lampert,

(9th Cir. 2003) (en banc). 24 13 Picard v. Connor,

(1971). 25 14 Woods v. Sinclair,

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

(9th Cir. 2005) (fair presentation requires both the operative facts and federal legal theory 26 upon which a claim is based). 27 15 Bland v. California Dep’t of Corrections,

(9th Cir. 1994). 28 16 ECF No. 5 at 1. 1 Conclusion 9 IT IS THEREFORE ORDERED that petitioner Christopher Gunn’s motion to extend 3 || time, which I construe as a motion to reopen, [ECF No. 7] is GRANTED. 4 This court having reviewed the petition, IT IS FURTHER ORDERED that Gunn’s 5 petition for writ of habeas corpus [ECF No. 5] is DISMISSED without prejudice as unexhausted. Gunn is denied a certificate of appealability, as jurists of reason would not find dismissal of the petition for the reasons stated herein to be debatable or wrong. 9 IT IS FURTHER ORDERED that the Clerk of the Court is directed to: 10 e REOPEN this case and VACATE the dismissal order [ECF No. 4] and the 1] judgment [ECF No. 6], and e RE-ENTER final judgment dismissing this action and RE-CLOSE this case. 13 14 ___ hor 15 US. District Judge Jenni cr A.Dorsey February 17, 2023 16 17 18 19 20 21 22 23 24 25 26 27 28