Leavitt v. Neven et al

Filing 70

ORDER Denying 64 Motion to Discharge Counsel. IT IS FURTHER ORDERED that 67 Motion to Strike is GRANTED. The Clerk of Court Shall Strike 66 from the Record. IT IS FURTHER ORDERED that petitioner, through appointed counsel, shall file, wit hin twenty (20) days of the entry of this order, a motion for a stay and abeyance. IT IS FURTHER ORDERED that 69 Motion for a More Definite Statement is Denied as Moot. Signed by Judge James C. Mahan on 5/18/2015. (Copies have been distributed pursuant to the NEF - DC)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9
CODY CORY LEAVITT,
10
11
12
13
14
15

)
)
Petitioner,
)
)
vs.
)
)
DWIGHT NEVEN, et al.,
)
)
Respondents.
)
____________________________________/

2:12-cv-00987-JCM-CWH
ORDER

On March 9, 2015, ths court entered an order that granted in part, and denied in part,

16

respondents’ motion to dismiss (ECF No. 48). ECF No. 60. Having concluded that petitioner’s

17

amended petition contains unexhausted claims, the court gave the petitioner thirty days to either

18

abandon his unexhausted claims, voluntarily dismiss his petition without prejudice while he pursues

19

exhaustion in state court, or file a motion for stay and abeyance pursuant to Rhines v. Weber, 544

20

U.S. 269 (2005).

21

Subsequent to that order, petitioner filed, pro se, a motion to discharge counsel (ECF No. 64)

22

and a motion for stay and abeyance (ECF No. 66). Respondents moved to strike the latter filing on

23

the ground that this court previously ordered the petitioner to refrain from filing further pro se

24

pleadings (ECF No. 34). ECF No. 67. Finally, petitioner’s counsel filed a notice indicating that

25

petitioner wishes file a motion for stay and abeyance (verified by an attached declaration from

26

1

petitioner) and seeking this court’s direction on how to proceed in light of petitioner’s desire to have

2

him relieved as counsel. ECF No. 69.

3

In asking the court to require counsel to remove himself from the case, petitioner alleges that

4

counsel has not devoted sufficient time to his case and has failed to communicate with him. While

5

not necessarily agreeing with petitioner’s allegations, counsel represents to the court that there has

6

been a breakdown in communication with his client. ECF No. 68. Accordingly, he joins in

7

petitioner’s request to have himself relieved as counsel. Id.

8

While the court is inclined to grant petitioner’s request, judicial efficiency and the

9

petitioner’s interests will be best served by having counsel prepare and file petitioner’s motion for

10

stay and abeyance. If that motion is granted, petitioner may request appointment of new counsel in

11

state court. If it is denied, the court will revisit whether counsel shall be discharged in this action.

12

IT IS THEREFORE ORDERED that petitioner's motion to discharge counsel (ECF No.

13
14
15
16

64) is DENIED.
IT IS FURTHER ORDERED that respondents’ motion to strike (ECF No. 67) is
GRANTED. The clerk of court shall strike from the record the document filed at ECF No. 66.
IT IS FURTHER ORDERED that petitioner, through appointed counsel, shall file, within

17

twenty (20) days of the entry of this order, a motion for a stay and abeyance, asking this court to

18

hold his exhausted claims in abeyance while he returns to state court to exhaust his unexhausted

19

claims. In all other respects, the order entered on March 9, 2015 (ECF No. 60), governs further

20

proceedings in this matter.

21
22
23

IT IS FURTHER ORDERED that the motion identified on the docket as a “motion for
more definite statement” (ECF No. 69) is DENIED as moot.
May 18, 2015.
Dated this ______ day of May, 2015.

24
25
26

UNITED STATES DISTRICT JUDGE
2