Theriault v. Lamb
Decision Date | 21 May 1974 |
Docket Number | LV-74-4RDF.,Civ. No. LV-74-7 |
Citation | 377 F. Supp. 186 |
Parties | Claude THERIAULT, Petitioner, v. Ralph LAMB, Clark County Sheriff, Respondent. Application of Robert Gordon JOHNSTONE, for a Writ of Habeas Corpus. |
Court | U.S. District Court — District of Nevada |
Gordon L. Hawkins, Alan R. Johns, Las Vegas, Nev., for petitioner Theriault.
Roy A. Woofter, Dist. Atty., Clark County, Las Vegas, Nev., for respondent.
Raymond E. Sutton, Anthony M. Earl, Las Vegas, Nev., for Johnstone.
ORDER DENYING PETITIONS FOR HABEAS CORPUS FACTS
Both petitioners, Theriault and Johnstone, are presently being held in the Clark County Jail pending trial in Nevada state court upon an indictment which charges petitioners and a Lloyd Paulette with two counts of murder. The two petitions for habeas corpus relief have been consolidated inasmuch as they present the same factual background and legal issue. Invoking jurisdiction under 28 U.S.C. § 2254(d)(4) and (7), petitioners allege that they are being held in confinement contrary to the requirements of due process of law. Arguing that although Nevada Revised Statutes § 171.010 renders "(e)very person, whether an inhabitant of this state, or any other state, or of a territory or district of the United States" liable for punishment for a violation of Nevada law committed within Nevada, that statute nowhere mentions nonresident aliens, petitioners claim, in effect, that nonresident aliens are immune from punishment for violations of Nevada law committed by such aliens in Nevada and that Nevada state courts have no jurisdiction over such violators. It is undisputed that petitioners are nonresident Canadians, and petitioners contend that the Nevada courts are without jurisdiction either to confine or try them.
Petitioner Theriault applied for habeas corpus relief in the Eighth Judicial District Court of Nevada, which was denied after thorough consideration of the merits of the above contention; this denial was affirmed on appeal to the Nevada Supreme Court. State of Nevada v. Theriault, Case No. 19975, Eighth Judicial District of Nevada, Decision and Order of July 26, 1973, affirmed sub nomine Theriault v. Sheriff, Nevada Supreme Court, 1973, 89 Nev. 506, 515 P.2d 397, rehearing denied Dec. 18, 1973. Prior to Theriault's seeking state habeas corpus relief, this Court had denied his previous petition for habeas corpus on the grounds that he then was not yet in custody pursuant to a judgment of the state court (28 U.S.C. § 2254(a)) and because he had not exhausted remedies available to him in the state court (28 U.S.C. § 2254(c)). Theriault v. Lamb, Case No. 1841, D. Nev., June 12, 1972. At that time this Court stated:
"Petitioner must stand trial and, if convicted and sentenced to the Nevada State Penitentiary, he may then appeal his conviction to the Nevada Supreme Court and raise, among others, the question raised in this petition." (Id., p. 1.)
Theriault now alleges that by exhausting state habeas corpus remedies he has met the exhaustion requirement and that by suffering a denial of a state writ of habeas corpus he is effectively being confined pursuant to a judgment of the state court.
Petitioner Johnstone also sought state habeas corpus relief which was denied by the state district court after full consideration of the issue raised herein. See Nevada v. Johnstone, Case No. 19975, Eighth Judicial District of Nevada, Decision and Order of August 1, 1973, rehearing denied September 5, 1973. Appeal to the Nevada Supreme Court was ordered dismissed for failure to timely file the notice of appeal. Johnstone v. Nevada, Nevada Supreme Court, October 23, 1973. Johnstone alleges he has exhausted all state remedies presently available to him.
Neither petitioner has gone to trial on the murder charges.
Should this Court abstain from interposing by way of habeas corpus at this stage of the state court proceedings?
In a short per curiam, the Ninth Circuit has outlined an important consideration which arises when a federal court is resorted to on habeas corpus petition prior to a pending trial in state court. In Drury v. Cox, 457 F.2d 764, at pages 764-765 (9th Cir. 1972), the Court stated:
While the Sixth Circuit, in Rivers v. Lucas, 477 F.2d 199, 203 (6th Cir. 1973), has refused to follow Drury, stating:
". . . we have found no Supreme Court decision which holds that pretrial habeas corpus relief is the equivalent of an injunction to stay proceedings in a state court",
such a rejection ignores the substantial identity of concern for a proper respect for state functions in "Our Federalism," the notion of comity, existing in actions to enjoin pending state criminal prosecutions and petitions for a pretrial writ of habeas corpus barring a state prosecution. In Younger v. Harris, supra, the Supreme Court, discussing federal enjoining of a state criminal prosecution, stated:
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United States ex rel. Scranton v. State of New York
...years ago." (Petition ¶ 18). 14 See the discussion of the relationship between habeas petitions and the Younger rule in Theriault v. Lamb, 377 F.Supp. 186 (D. Nev.1974). ...
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York v. Ward, 82 Civ. 1188.
...(2d Cir. 1976); Drury v. Cox, 457 F.2d 764 (9th Cir. 1972); U. S. ex rel. Tyler v. Hall, 444 F.Supp. 104 (E.D.Mo.1978); Theriault v. Lamb, 377 F.Supp. 186 (D.C. Nev.1974). In Younger, a proceeding was pending in the State court which Harris successfully sought to have the federal district c......
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Perez v. Spearman, 2:19-CV-1223-KJM-DMC-P
...v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); Roberts v. Dicarlo, 296 F. Supp. 2d 1182, 1185 (C.D. Cal. 2003); Theriault v. Lamb, 377 F. Supp. 186, 189-90 (D. Nev. 1974). If not, Petitioner is not barred from seeking federal review when the state proceedings are concluded. Roberts, 296 F. ......