Farnum v. LeGrand

Filing 43

ORDER GRANTING # 41 Motion for clarification as set forth herein. Signed by Judge Andrew P. Gordon on 10/13/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN MICHAEL FARNUM,
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Petitioner,
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vs.
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ROBERT LeGRAND , et al.,
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Respondents.
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____________________________________/

2:13-cv-01304-APG-PAL
ORDER

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In this habeas corpus action, the petitioner, John Michael Farnum, has filed a motion seeking

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clarification of this court’s order granting in part respondents’ motion to dismiss (ECF No. 32). ECF

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No. 41. Specifically, Farnum asks the court to explain why, in that order, it did not address the

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exhaustion status of eleven of his nineteen habeas claims.

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As respondents point out in responding to Farnum’s motion (ECF No. 42), the court

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addressed only those claims that the respondents sought to dismiss on exhaustion grounds. The

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claims that this court identified as unexhausted are as follows:
(1)

appellate counsel provided ineffective assistance by raising a “specious” Eighth
Amendment claim on direct appeal;

(2)

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trial counsel was operating under a conflict of interest because trial counsel
previously had represented Bob Farnum, petitioner’s father, on charges of sexual
offenses;

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(3)

trial counsel provided ineffective assistance because he gave specious testimony at
the state habeas corpus evidentiary hearing about how much time he spent preparing
for trial;

(4)

trial counsel provided ineffective assistance because trial counsel failed to obtain the
medical records of the victim’s mother;

(5)

trial counsel failed to use available impeachment evidence against the prosecution’s
witnesses; and

(6)

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trial counsel provided ineffective assistance because trial counsel did not challenge
the allegation that petitioner abused the victim in the house of Bob Farnum,
petitioner’s father.

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ECF No. 32, p. 3-6. The court concluded that respondents’ arguments claiming that Farnum failed

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to exhaust two other claims were without merit. Id.

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Although this court may consider sua sponte whether the petition contains unexhausted

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claims, it is not required to so. See Granberry v. Greer, 481 U.S. 129, 133-34 (1987) (holding that

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federal court may raise exhaustion sua sponte when State inadvertently neglected to raise defense if

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interests of justice would be served). The respondents’ omission of Farnum’s remaining claims from

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their motion to dismiss suggests that they view those claims as exhausted, but Farnum is cautioned

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that the exhaustion requirement must be expressly waived (28 U.S.C. § 2254(3)). Lastly, this court

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has no control over which claims Farnum chooses to present to state court now that this proceeding

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is stayed. That is matter left to his discretion.

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IT IS THEREFORE ORDERED that petitioner’s motion for clarification (ECF No. 41) is
GRANTED as set forth above.
Dated this 13th day of October, 2015.

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UNITED STATES DISTRICT JUDGE

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