Flanagan v. McDaniel

Filing 114

ORDER. Granting in part and Denying in part 112 Motion to Lift Stay. IT IS FURTHER ORDERED that the stay of this action shall remain in effect. IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of the Court shall substitute Adam Paul Laxalt for Catherine Cortez Masto, on the docket for this case, as the respondent Attorney General of the State of Nevada, and shall update the caption of the action to reflect this change. Signed by Judge Kent J. Dawson on 12/19/16. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DALE EDWARD FLANAGAN,

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Petitioner,

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vs.

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TIMOTHY FILSON, et al.,

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2:09-cv-00085-KJD-GWF

Respondents.

ORDER

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This capital habeas corpus action was stayed on August 23, 2012, pending the petitioner’s

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exhaustion of claims in state court (ECF No. 100). On June 3, 2016, the petitioner, Dale Edward

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Flanagan, filed a motion entitled “Motion to Lift the Stay of Proceedings” (ECF No. 112). On

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June 17, 2016, respondents filed a response to the motion (ECF No. 257).

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In Flanagan’s motion, he states that he has until January 19, 2017, to petition the United

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States Supreme Court for a writ of certiorari, and that he is researching potential grounds for seeking

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such Supreme Court review. He therefore requests that the stay of this action remain in place until

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the latter of: (1) the time for filing a petition for writ of certiorari in the United States Supreme

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Court, (2) the date that any such petition is denied by the United States Supreme Court, or (3) final

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resolution of any certiorari proceedings in the United States Supreme Court. In their response to the

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motion, respondents do not oppose Flanagan’s request that the stay of this action remain in effect for

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such time.

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Good cause appearing, the court will grant Flanagan’s motion in part and deny it in part. The

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court will deny the motion to the extent that Flanagan requests that the stay be lifted. The court will

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grant Flanagan’s motion to the extent that he requests that the stay remain in effect. The court will

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set a deadline for Flanagan to file a new motion to lift stay.

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IT IS THEREFORE ORDERED that petitioner’s Motion to Lift the Stay of Proceedings
(ECF No. 112) is GRANTED IN PART AND DENIED IN PART.

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IT IS FURTHER ORDERED that the stay of this action shall remain in effect.

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IT IS FURTHER ORDERED that petitioner shall file a new motion to lift the stay of this

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action within 30 days after the latter of: (1) the time for him to file a petition for writ of certiorari in

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the United States Supreme Court, (2) the date that any such petition is denied by the United States

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Supreme Court, or (3) the final resolution of any certiorari proceedings in the United States Supreme

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Court.

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IT IS FURTHER ORDERED that this action shall be subject to dismissal upon a motion by

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respondents if petitioner does not comply with the time limits in this order, or if he otherwise fails to

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proceed with diligence during the stay imposed pursuant to this order.

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IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 25(d), the

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Clerk of the Court shall substitute Timothy Filson for Renee Baker, on the docket for this case, as the

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respondent warden, and shall update the caption of the action to reflect this change.

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IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure 25(d), the

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Clerk of the Court shall substitute Adam Paul Laxalt for Catherine Cortez Masto, on the docket for

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this case, as the respondent Attorney General of the State of Nevada, and shall update the caption of

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the action to reflect this change.

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Dated this _____ day of December, 2016.

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UNITED STATES DISTRICT JUDGE
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