Anscott v. Williams

Filing 24

ORDER granting in part and denying in part 15 Motion to Dismiss. Grounds 1(d), 1(e), 2(b), 2(c), 3, and 4 of the federal petition are unexhausted. Additionally, the only portion of Ground 2(a) that is exhausted is petitioners allegation that ap pellate counsel failed to present the Nevada Supreme Court with a transcript of the plea canvass; the remainder of Ground 2(a) is unexhausted. The Court declines to dismiss Grounds 1(c), 1(d), and 1(e) as conclusory at this juncture. To the exten t that Ground 3 alleges that the state district court violated NRS 207.010 when sentencing petitioner as a habitual offender, this state law claim is DISMISSED WITH PREJUDICE as not a cognizable claim for which federal habeas relief can be granted. IT IS FURTHER ORDERED that petitioner has until March 4, 2015, to either: (1) inform this Court in a sworn declaration that he wishes to formally and forever abandon the unexhausted grounds for relief in his federal habeas petition and proceed on the exhausted grounds; OR (2) inform this Court in a sworn declaration that he wishes to dismiss this petition without prejudice in order to return to state court to exhaust his unexhausted claims; OR (3) file a motion for a stay and abeyance, asking this Court to hold his exhausted claims in abeyance while he returns to state court to exhaust his unexhausted claims. If petitioner chooses to file a motion for a stay and abeyance, or seek other appropriate relief, respondents may respond to that motion as provided in Local Rule 7-2. IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted grounds, respondents shall have 30 days from the date petitioner serves his declaration of abandonment in which to file a n answer to petitioners remaining grounds for relief. IT IS FURTHER ORDERED that petitioner shall have 30 days following service of respondents answer in which to file a reply. IT IS FURTHER ORDERED that if petitioner fails to respond to this order within the time permitted, this case may be dismissed. Signed by Judge Jennifer A. Dorsey on 2/2/2015. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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JESS GUY ANSCOTT,

Case No. 2:13-cv-1833-JAD-VCF

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Petitioner,
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vs.

ORDER

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BRIAN WILLIAMS, et al.,
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Respondents.
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This is a pro se petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 by a

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Nevada state prisoner. Before the Court is respondents’ motion to dismiss the petition. (Doc. 15).

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For the reasons below, I grant the motion in part.

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I. Procedural History

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In the Eighth Judicial District for the State of Nevada, in case no. C228372, the State of

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Nevada filed an information charging petitioner with two felony counts of possession of a stolen

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motor vehicle. (Exhibit 11).1 Pursuant to an agreement with the State, petitioner entered a guilty

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plea to a single count of possession of a stolen motor vehicle. (Exhibits 17, 18, 19). In exchange

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for petitioner’s plea, the State agreed to recommend a sentence under the habitual offender statute

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(NRS 207.010) of no more than 12 ½ years with eligibility for parole beginning after 5 years and the

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State retaining the right to argue for consecutive sentences with respect to two other cases. (Exhibit

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19). Additionally, the State agreed to petitioner’s release on his own recognizance prior to

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sentencing, under the condition that the State would be free to recommend a greater sentence under

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the habitual offender statute if petitioner failed to appear at sentencing. (Id.).

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The exhibits referenced in this order are found in the Court’s record at Docs. 16-20.

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Petitioner failed to appear for sentencing, and the state district court granted the defense a

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continuance to give defense counsel an opportunity to locate petitioner. (Exhibit 45, at p. 3). When

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defense counsel was unsuccessful in finding petitioner, the state district court ultimately issued a

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bench warrant. (Exhibit 20; Exhibit 45, at p. 3). Subsequent to being arrested on the bench warrant,

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petitioner filed a motion to withdraw his guilty plea. (Exhibit 24). After a hearing on the motion to

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withdraw the guilty plea, the state district court denied the motion. (Exhibits 34 & 42).

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Petitioner also filed a motion seeking appointment of alternate counsel for the purpose of

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reviewing allegations of ineffective assistance of counsel. (Exhibit 39). The state district court

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denied that motion and proceeded to sentencing. (Exhibit 44). The state district court adjudicated

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petitioner a habitual criminal under NRS 207.010, sentenced him to ten years to life in prison, and

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ordered the sentence to be served concurrent to his other sentences. (Exhibit 45, at p. 23; Exhibit

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46, at p. 2).

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Petitioner appealed from his judgment of conviction. (Exhibit 47). In his counseled opening

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brief on direct appeal, filed on August 24, 2009, (Exhibit 65), petitioner raised three issues: (1)

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whether the trial court erred when it denied petitioner’s motion to withdraw his guilty plea

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agreement due to ineffective assistance of counsel; (2) whether the trial court erred when it denied

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petitioner’s motion to withdraw the guilty plea agreement due to alleged mental impairment; and (3)

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whether the trial court erred when it denied petitioner’s motion to appoint independent counsel to

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assess claims of ineffective assistance, because allowing the public defender’s office to investigate

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petitioner’s claims constituted a conflict of interest. (Id.). On March 11, 2010, the Nevada Supreme

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Court affirmed petitioner’s conviction. (Exhibit 68).

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On January 31, 2011, petitioner filed a pro se post-conviction habeas petition in state district

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court. (Exhibit 74). Petitioner was appointed counsel, who filed a supplemental petition on

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September 23, 2011. (Exhibits 81 & 82). On March 23, 2012, the state district court held a hearing

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on the petition. (Exhibit 85). The state district court denied the petition at the conclusion of the

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hearing. (Exhibit 85, at pp. 28-29). The state district court filed a written order on May 18, 2012,

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denying the petition and supplemental petition. (Exhibit 97).

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Petitioner appealed the denial of his post-conviction habeas petition and supplemental

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petition. (Exhibit 88). In his counseled opening brief on appeal, filed January 7, 2013, (Exhibit

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109), he raised these issues: (1) did the trial court err in denying the petition for writ of habeas

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corpus including all grounds set forth therein; (2) did the trial court err in concluding that petitioner

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was appropriately and effectively explained the risks of large habitual sentencing; (3) did the court

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err in concluding that petitioner would have accepted the plea negotiation regardless of whether the

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defenses were fully investigated; and (4) did the trial court err by imposing the habitual

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enhancement resulting in a punishment that was cruel and unusual. (Exhibit 109, at pp. 6-7). By

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order filed July 23, 2013, the Nevada Supreme Court affirmed the denial of the post-conviction

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petition and supplemental petition. (Exhibit 113). Remittitur issued on August 21, 2013. (Exhibit

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115).

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Petitioner dispatched his federal habeas petition to this court on October 1, 2013. (Doc. 11,

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at p. 1, item 5). Respondents now move to dismiss the petition. (Doc. 15). Petitioner filed an

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opposition to the motion. (Doc. 22). Respondents filed a reply. (Doc. 23).

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II. Discussion

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A. Unexhausted Grounds
1. Exhaustion Standard
Respondents argue that several grounds of the petition are unexhausted. 28 U.S.C. §

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2254(b)(1)(A) requires a habeas petitioner to first exhaust state court remedies on a claim before

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presenting that claim to the federal courts. To satisfy the exhaustion requirement, the claim must

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have been fairly presented to the state courts completely through to the highest court available—in

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this case, the Nevada Supreme Court. See, e.g., Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir.

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2003) (en banc); Yang v. Nevada, 329 F.3d 1069, 1075 (9th Cir. 2003). In the state courts, the

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petitioner must refer to the specific federal constitutional guarantee and must also state the facts that

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entitle the petitioner to relief on the federal constitutional claim. Shumway v. Payne, 223 F.3d 983,

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987 (9th Cir. 2000). Fair presentation requires that the petitioner present the state courts with both

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the operative facts and the federal legal theory upon which the claim is based. See, e.g. Castillo v.

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McFadden, 399 F.3d 993, 999 (9th Cir. 2005). The exhaustion requirement ensures that the state
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courts, as a matter of federal-state comity, will have the first opportunity to pass upon and correct

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alleged violations of federal constitutional guarantees. See Coleman v. Thompson, 501 U.S. 722,

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731 (1991).

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A habeas petitioner must “present the state courts with the same claim he urges upon the

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federal court.” Picard v. Connor, 404 U.S. 270, 276 (1971). To satisfy exhaustion, each of

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petitioner’s claims must have been previously presented to the Nevada Supreme Court, with

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references to a specific constitutional guarantee and a statement of facts that entitle petitioner to

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relief. Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2002). The federal constitutional

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implications of a claim, not just issues of state law, must have been raised in the state court to

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achieve exhaustion. Ybarra v. Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404

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U.S. at 276)). The state court must be “alerted to the fact that the prisoner [is] asserting claims

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under the United States Constitution” and given the opportunity to correct alleged violations of the

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prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195

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F.3d 1098, 1106 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a simple and

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clear instruction to potential litigants: before you bring any claims to federal court, be sure that you

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first have taken each one to state court.” Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting

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Rose v. Lundy, 455 U.S. 509, 520 (1982)).

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2. Ground 1(d)
Petitioner asserts a claim of ineffective assistance of counsel based on allegations that trial

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counsel failed to examine infirmities in the prior convictions used to sentence petitioner as a

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habitual criminal. (Doc. 11, at p. 10). Petitioner never presented an ineffective assistance of

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counsel claim to the Nevada Supreme Court based on allegations that his counsel failed to examine

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infirmities in his prior convictions that made him eligible for treatment as a habitual criminal.

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(Exhibit 65; Exhibit 109). Ground 1(d) of the petition is unexhausted.

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3. Ground 1(e)
Petitioner alleges that trial counsel was ineffective for failing “to object to the State’s failure

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to prove the judgments of conviction actually belonged to [petitioner].” (Doc. 11, at p. 11).

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Petitioner did not present this claim to the Nevada Supreme Court. In his opposition, petitioner
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argues that he exhausted the claim by presenting it in his state habeas petition filed in the state

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district court. (ECF No. 22, at p. 4). To exhaust a claim, a petitioner must have presented his

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federal constitutional issue before the highest available state court “within the four corners of his

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appellate briefing.” Castillo v. McFadden, 399 F.3d 993, 1000 (9th Cir. 2005). The state’s highest

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court is “not required to comb the trial court’s decision to discover [a] federal constitutional issue . .

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. ” nor is it “required to review the parties’ trial court pleadings to see if it [can] discover for itself a

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federal constitutional issue.” Id. (citing Baldwin v. Reese, 541 U.S. 27 (2004)) (declining to require

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state appellate judges to read lower court state opinions). Only those issues within the four corners

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of petitioner’s opening brief were properly presented to the Nevada Supreme Court for exhaustion

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purposes. Petitioner never presented an ineffective assistance of counsel claim to the Nevada

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Supreme Court based on allegations that his counsel failed to object to the State’s failure to prove

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the judgments of conviction actually belonged to petitioner. (Exhibit 65; Exhibit 109). Ground 1(e)

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of the petition is unexhausted.

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4. Ground 2(a)

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Petitioner alleges ineffectiveness of appellate counsel based on the following:

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[Appellate counsel] failed to adequately present or support
defendant’s grounds of appeal by: (i) failing to indicate just what
documents and witnesses trial counsel failed to procure and how they
would have exonerated defendant; and (ii) failing to present the
Nevada Supreme Court with copies of the guilty plea agreement
(GPA) and transcript of defendant’s plea canvass.

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(Doc. 11, at p. 13). In petitioner’s opening brief on appeal from the denial of his state habeas
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petition, petitioner asserted that: “In the instant case, appellate counsel not only failed to identify
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specific appellate issues, but in addition and more specifically failed to provide the appellate court
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with the necessary record in order for the Court to render a decision. No transcript of the plea
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canvass was provided.” (Exhibit 109, at p. 21). In his opposition, petitioner argues that he
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exhausted the claim by presenting it in his state habeas petition filed in the state district court. (ECF
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No. 22, at pp. 4-6). However, only those issues “within the four corners” of his state appellate
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briefing were properly presented to the Nevada Supreme Court for exhaustion purposes. Castillo v.
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McFadden, 399 F.3d 993, 1000 (9th Cir. 2005). Petitioner did not present the Nevada Supreme
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Court with allegations that appellate counsel failed to identify “documents or witnesses trial counsel

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failed to procure and how they would have exonerated” petitioner. Petitioner also did not present

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the Nevada Supreme Court with allegations that appellate counsel was ineffective for failing to

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provide the Nevada Supreme Court with a copy of the guilty plea agreement. (See Exhibits 65 &

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109). Therefore, the only portion of Ground 2(a) that is exhausted is petitioner’s allegation that

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appellate counsel failed to present the Nevada Supreme Court with a transcript of the plea canvass.

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The remainder of Ground 2(a) is unexhausted.

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5. Ground 2(b)

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Petitioner alleges that appellate counsel failed to “federalize” his claim that the trial court

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erred in denying the motion to withdraw his guilty plea. (Doc. 11, at pp. 14-15). Petitioner never

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presented the Nevada Supreme Court with this claim. (See Exhibits 65 & 109). Ground 2(b) is

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unexhausted.

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6. Ground 2(c)
Petitioner asserts that appellate counsel was ineffective for not challenging the state district

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court adjudicating him as a habitual offender. (Doc. 11, at p. 16). In his opening brief on appeal

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from the denial of his state habeas petition, petitioner alleged that his attorney was ineffective for

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“fail[ing] to identify specific appellate issues.” (Exhibit 109, at p. 21). However, petitioner never

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presented the Nevada Supreme Court with a specific claim that counsel was ineffective for failing to

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challenge the state district court’s decision to adjudicate him as a habitual offender. (See Exhibits

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65 & 109). Moreover, the Nevada Supreme Court, in affirming the denial of the state habeas

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petition, stated that: “Appellant failed to demonstrate prejudice, as he does not identify the issues

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that appellate counsel should have raised . . . .” (Exhibit 113, at p. 4). Ground 2(c) is unexhausted.

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7. Ground 3
Petitioner alleges that his sentence constitutes cruel and unusual punishment under the

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Eighth Amendment and that the state district court’s sentencing him as a habitual criminal violated

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NRS 207.010 et seq. (Doc. 11, at pp. 17-19). While petitioner presented this claim to the Nevada

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Supreme Court in his opening brief on appeal from the denial of his state habeas petition, the

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Nevada Supreme Court declined to reach the merits of that claim because he did not present the
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claim to the state district court in his state habeas petition. (Exhibit 109, at pp. 26-28; Exhibit 113,

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at p. 4). Exhaustion cannot be achieved by a procedurally deficient or improper means. Castille v.

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Peoples, 489 U.S. 346 (1989). Accordingly, Ground 3 is unexhausted because petitioner did not

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present the claim to the Nevada Supreme Court in a proper procedural context.

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8. Ground 4
Petitioner challenges the validity of his guilty plea, asserting that he did not voluntarily enter

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into his plea because he was taking medication and suffered from mental health problems. (Doc.

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11, at pp. 20-21). Respondents contend that petitioner presented a similar claim in his opening brief

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on direct appeal, but he presented it as a state law claim, challenging the district court’s denial of his

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motion to withdraw his guilty plea.

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A petitioner must alert the state courts to the fact that he is asserting a federal claim in order

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to fairly present the legal basis of the claim. Duncan v. Henry, 513 U.S. 364, 365-66 (1995). In the

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Ninth Circuit, a petitioner must make the federal basis of the claim explicit by either referencing

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specific provisions of the federal constitution or statutes, or citing to federal case law. Castillo v.

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McFadden, 399 F.3d 993, 999; Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), as modified

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by 247 F.3d 904 (9th Cir. 2001). “In order to alert the state court, a petitioner must make reference

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to provisions of the federal Constitution or must cite either federal or state case law that engages in a

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federal constitutional analysis.” Fields v. Waddington, 401 F.3d 1018, 1021-22 (9th Cir. 2005).

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Mere similarity of claims between a state law claim and a federal law claim is insufficient for

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exhaustion purposes. See Henry, 513 U.S. at 366; see also Johnson v. Zenon, 88 F.3d 828, 830 (9th

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Cir. 1996). If a petitioner cites a state case that analyses a federal constitutional issue, that federal

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issue is fairly presented. Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir. 2003). A petitioner

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does not exhaust state remedies by generally appealing to a broad constitutional provision alone.

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Gray v. Netherland, 518 U.S. 152, 163 (1996). In order to present the substance of a claim to the

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state court, petitioner must reference the specific federal constitutional provision as well as a

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statement of facts that entitle the petitioner to relief. Gray, 518 U.S. at 162-63. A petitioner who

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cites one clause of a constitutional amendment does not exhaust a claim under a different clause of

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the same constitutional amendment. See Picard v. Connor, 404 U.S. 270, 276-77 (1971).
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In Ground 4 of the federal petition, petitioner claims that his guilty plea was not knowing,

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intelligent, and voluntary, therefore violating his Due Process Clause of the Fourteenth Amendment

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of the United States Constitution. (Doc. 11, at pp. 20-21). The second issue in petitioner’s opening

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brief on direct appeal to the Nevada Supreme Court was “whether the trial court erred when it

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denied appellant’s motion to withdraw the guilty plea agreement due to appellant’s mental

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impairment at the time of the guilty plea agreement.” (Exhibit 65, at p. 10). While that claim is

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similar and related to petitioner’s federal due process claim in Ground 4 of the federal petition, it is

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not the same legal claim. The Nevada cases that petitioner cited in his opening brief analyzed a

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defendant’s ability to challenge the validity of his guilty plea through a claim of ineffective

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assistance of counsel under the Sixth Amendment to the United States Constitution. See, e.g.,

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Molina v. State, 87 P.3d 533, 536-538 (Nev. 2004); Wingfield v. State, 535 F.2d 1295, 1296 (Nev.

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1975); Exhibit 65, at pp. 10-11. Another Nevada case cited by petitioner in his opening brief,

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Mitchell v. State, 848 F.2d 1060 (Nev. 1993), analyzed whether the state district court had abused its

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discretion in denying a defendant’s motion to withdraw a guilty plea pursuant to state statute NRS

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176.165 and under the Nevada cases of Bryant v. State, 721 F.2d 364 (1986) and Wingfield v. State,

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535 F.2d 1295 (Nev. 1975); Exhibit 65, at pp. 10-11. None of the Nevada cases cited in petitioner’s

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opening brief analyze the federal standard for determining whether a plea itself is knowing,

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intelligent, and voluntary under the Due Process Clause of the Fourteenth Amendment of the United

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States Constitution. Because petitioner’s federal due process claim in Ground 4 differs from the

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state law claim and cases cited in the opening brief on direct appeal, petitioner did not fairly present

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the same legal claim to the Nevada Supreme Court. Therefore, Ground 4 of the federal petition is

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unexhausted.

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B. Argument Regarding Conclusory Claims

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A state prisoner is entitled to federal habeas relief only if he is being held in custody in

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violation of the constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Rule 2(c)

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of the Rules Governing Section 2254 Cases requires a federal habeas petition to specify all grounds

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for relief and “state the facts supporting each ground.” Respondents contend that Grounds 1(c),

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1(d), and 1(e) are conclusory and should be dismissed. In Ground 1(c), petitioner asserts that his
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attorney “rendered ineffective assistance by failing to communicate with petitioner in order to

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prepare a defense.” (Doc. 11, at p. 9). In Ground 1(d), petitioner alleges that counsel was

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ineffective for failing to examine the convictions that the state district court relied upon to enhance

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his sentence by adjudicating him a habitual criminal. (Doc. 11, at p. 10). In Ground 1(e), petitioner

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alleges that counsel was ineffective for failing “to object to the State’s failure to prove the

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judgments of conviction actually belonged to the defendant.” (Doc. 11, at p. 11). As to each of

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these grounds, respondents argue that petitioner fails to allege sufficient facts and details to succeed

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on his ineffective assistance of counsel claims under Strickland v. Washington, 466 U.S. 668 (1984).

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Respondents’ arguments are better reserved for inclusion in an answer and consideration on the

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merits of the petition at a later time. The Court declines to dismiss these grounds as conclusory at

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this juncture.

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C. Non-Cognizable State Law Claim

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In Ground 3, petitioner alleges that his sentence violates the Eighth Amendment’s

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prohibition on cruel and unusual punishment because his sentence is grossly disproportionate to the

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underlying offense. (Doc. 11, at p. 17). Petitioner also alleges that the state district court’s

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sentencing him as a habitual offender violated NRS 207.010 et seq. (Id., at pp. 17-19).

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Respondents assert that the state law claim is not a cognizable claim for federal habeas corpus relief.

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A state prisoner is entitled to federal habeas relief only if he is being held in custody in violation of

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the constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Unless an issue of

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federal constitutional or statutory law is implicated by the facts presented, the claim is not

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cognizable under federal habeas corpus. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Allegations of

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violations of state law do not present a cognizable basis for federal habeas corpus relief. Swarthout

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v. Cooke, 131 S.Ct. 859, 862-63 (2001); see also Missouri v. Hunter, 459 U.S. 359, 368 (1983).

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Thus, to the extent that petitioner alleges in Ground 3 that the state district court violated NRS

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207.010 when sentencing him as a habitual offender, he is alleging a violation of state law, which is

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not a cognizable basis for federal habeas relief. This portion of Ground 3 is dismissed as not

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cognizable.

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III. Petitioner’s Options Regarding Unexhausted Claims

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A federal court may not entertain a habeas petition unless the petitioner has exhausted

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available and adequate state court remedies with respect to all claims in the petition. Rose v. Lundy,

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455 U.S. 509, 510 (1982). A “mixed” petition contains both exhausted and unexhausted claims. Id.

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The court finds that Grounds 1(d), 1(e), 2(b), 2(c), 3, and 4 are unexhausted. Additionally, the only

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portion of Ground 2(a) that is exhausted is petitioner’s allegation that appellate counsel failed to

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present the Nevada Supreme Court with a transcript of the plea canvass; the remainder of Ground

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2(a) is unexhausted. The remaining grounds of the petition, including Grounds 1(a), 1(b), and 1(c),

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appear to be exhausted. Because the court finds that the petition is a “mixed petition” containing

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both exhausted and unexhausted claims, petitioner has these options:
1.

He may submit a sworn declaration voluntarily abandoning the unexhausted
claims in his federal habeas petition, and proceed only on the exhausted
claims;

2.

He may return to state court to exhaust his unexhausted claims, in which case
his federal habeas petition will be denied without prejudice; or

3.

He may file a motion asking this court to stay and abey his exhausted federal
habeas claims while he returns to state court to exhaust his unexhausted
claims.

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See Rose v. Lundy, 455 U.S. 509 (1982); Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315

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F.3d 1063 (9th Cir. 2002); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). Petitioner’s failure to

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choose one of these three options listed above, or seek other appropriate relief from this court,

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will result in his federal habeas petition being dismissed. Petitioner is advised to familiarize

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himself with the limitations periods for filing federal habeas petitions contained in 28 U.S.C. §

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2244(d), as those limitations periods may have a direct and substantial effect on whatever choice he

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makes regarding his petition.

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IV. Conclusion

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IT IS THEREFORE ORDERED that respondents’ motion to dismiss (Doc. 15) is
GRANTED IN PART AND DENIED IN PART:
1. Grounds 1(d), 1(e), 2(b), 2(c), 3, and 4 of the federal petition are unexhausted.
Additionally, the only portion of Ground 2(a) that is exhausted is petitioner’s allegation that
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appellate counsel failed to present the Nevada Supreme Court with a transcript of the plea canvass;

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the remainder of Ground 2(a) is unexhausted.

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2. The Court declines to dismiss Grounds 1(c), 1(d), and 1(e) as conclusory at this juncture.

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3. To the extent that Ground 3 alleges that the state district court violated NRS 207.010

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when sentencing petitioner as a habitual offender, this state law claim is DISMISSED WITH

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PREJUDICE as not a cognizable claim for which federal habeas relief can be granted.

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IT IS FURTHER ORDERED that petitioner has until March 4, 2015, to either: (1) inform

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this Court in a sworn declaration that he wishes to formally and forever abandon the unexhausted

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grounds for relief in his federal habeas petition and proceed on the exhausted grounds; OR (2)

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inform this Court in a sworn declaration that he wishes to dismiss this petition without prejudice in

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order to return to state court to exhaust his unexhausted claims; OR (3) file a motion for a stay and

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abeyance, asking this Court to hold his exhausted claims in abeyance while he returns to state court

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to exhaust his unexhausted claims. If petitioner chooses to file a motion for a stay and abeyance, or

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seek other appropriate relief, respondents may respond to that motion as provided in Local Rule 7-2.

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IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted grounds,

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respondents shall have 30 days from the date petitioner serves his declaration of abandonment in

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which to file an answer to petitioner’s remaining grounds for relief. The answer shall contain all

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substantive and procedural arguments as to all surviving grounds of the petition, and shall comply

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with Rule 5 of the Rules Governing Proceedings in the United States District Courts under 28

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U.S.C. §2254.

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IT IS FURTHER ORDERED that petitioner shall have 30 days following service of
respondents’ answer in which to file a reply.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order within the time
permitted, this case may be dismissed.

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Dated this 2nd day of February, 2015.
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Jennifer Dorsey
rsey
y
United States District Judge
Di t i t J d
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