Combs v. State of Nevada et al

Filing 100

ORDER. IT IS ORDERED that 94 petitioner's motion for relief from judgment is GRANTED. The order 88 and judgment 89 dismissing this action are VACATED, and this action is REINSTATED. See Order for further deadlines. Signed by Chief Judge Gloria M. Navarro on 4/4/2018.; Case reopened. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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BRETT COMBS,

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Petitioner,

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vs.

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STATE OF NEVADA, et al.,

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Case No. 2:11-cv-00528-GMN-VCF

Respondents.

ORDER

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On September 19, 2017, the court entered an order (ECF No. 87) finding that petitioner had

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not exhausted his state-court remedies for grounds 1.1, 1.4 through 1.14, 1.16 through 1.20, 2

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through 4, 6, and 9 through 11 of the amended petition; the court instructed petitioner to inform the

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court what he wanted to do. The court received no response from petitioner in the allotted time, and

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the court dismissed the action on November 13, 2017 (ECF No. 88).

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Petitioner retained counsel, and he filed a motion for relief from judgment (ECF No. 94) on

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December 28, 2017. He argues that the court should grant relief based upon Rule 60(b)(1) of the

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Federal Rules of Civil Procedure because prison officials never delivered the court’s order of

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September 19, 2017, to him. Consequently, he did not know that the court had ruled upon the

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motion to dismiss and that he needed to decide what to do with the unexhausted grounds. Petitioner

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then argues that prison officials did deliver the court’s order and judgment of November 13, 2017,

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and he retained counsel to help him. Respondents response (ECF No. 99) indicates that they do not

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oppose the motion.

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IT IS THEREFORE ORDERED that petitioner’s motion for relief from judgment (ECF No.

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94) is GRANTED. The order (ECF No. 88) and judgment (ECF No. 89) dismissing this action are

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VACATED, and this action is REINSTATED.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date of entry

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of this order to do one of the following: (1) inform this court in a sworn declaration that he wishes

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to dismiss grounds 1.1, 1.4 through 1.14, 1.16 through 1.20, 2 through 4, 6, and 9 through 11 of his

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amended petition (ECF No. 23), and proceed only on the remaining grounds for relief, (2) inform

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this court in a sworn declaration that he wishes to dismiss his amended petition (ECF No. 23) to

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return to state court to exhaust his state remedies with respect to the claims set out in grounds 1.1,

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1.4 through 1.14, 1.16 through 1.20, 2 through 4, 6, and 9 through 11 of his amended petition (ECF

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No. 23), or (3) move to stay this action while he returns to state court to exhaust his state remedies

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with respect to the claims set out in grounds 1.1, 1.4 through 1.14, 1.16 through 1.20, 2 through 4, 6,

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and 9 through 11 of his amended petition (ECF No. 23). Failure to comply will result in the

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dismissal of this action.

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IT IS FURTHER ORDERED that if petitioner elects to dismiss the aforementioned grounds

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of his amended petition (ECF No. 23) and proceed on the remaining grounds, respondents shall file

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and serve an answer, which must comply with Rule 5 of the Rules Governing Section 2254 Cases in

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the United States District Courts, within forty-five (45) days after petitioner serves his declaration

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dismissing those grounds. Petitioner shall have forty-five (45) days from the date on which the

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answer is served to file and serve a reply.

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DATED: April 4, 2018

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_________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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