Madrid v. Neven et al

Filing 30

ORDER. IT IS HEREBY ORDERED that 28 Madrid's renewed motion to stay and abey is DENIED. The Clerk of Court is directed to SEND to Madrid a copy of my 3/20/17, (ECF No. 24 ) order. IT IS FURTHER ORDERED that 27 Madrid's motion for a n extension of time is GRANTED nunc pro tunc to 4/20/17. Madrid has until 12/8/17, to advise the court in a sworn declaration re unexhausted claims. Signed by Judge Jennifer A. Dorsey on 11/8/17. (Copies have been distributed pursuant to the NEF - ADR)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

Mariano Madrid,

2:15-cv-00118-JAD-PAL

Petitioner
v.

Order
[ECF Nos. 27, 28]

Dwight Neven, et al.,
Respondents
Pro se petitioner Mariano Madrid is serving two consecutive 20-years-to-life
sentences after he was convicted of murder with deadly-weapon and gangpromotion enhancements.1 Madrid filed this mixed petition for a writ of habeas
corpus under 28 U.S.C. § 2254, but because he cannot proceed on a mixed
petition—a petition that has exhausted and unexhausted claims—I gave him three
options.2 He could (1) voluntarily abandon his unexhausted claims and proceed on
his exhausted claims only, (2) return to state court to exhaust his unexhausted
claims, which would result in a denial of his habeas corpus petition without
prejudice, or (3) file a motion to stay and abey his exhausted claims while he
returned to state court to exhaust his unexhausted claims.3
Madrid chose the third option, but he was unable to satisfy the applicable
legal standard, so his stay-and-abey motion was denied.4 I then gave him until

1

ECF No. 1 at 2.

2

ECF No. 20.

3

Id. at 5–6.

4

ECF No. 24.

April 20, 2017, to choose again between options 1 and 2.5 Madrid now asks for an
extension of time and renews his motion to stay and abey his exhausted claims.6
Madrid argues that he never received my order denying his first stay-and-abey
motion. That does not justify a renewed filing, but his renewed motion still fails to
satisfy the Rhines v. Weber7 standard. I made him aware of the Rhines standard
when I gave him the three options to choose from, but he still fails to show—or even
address—that he has good cause for failing to exhaust his unexhausted claims.
Accordingly, IT IS HEREBY ORDERED that Madrid’s renewed motion to
stay and abey [ECF No. 28] is DENIED. The Clerk of Court is directed to SEND to
Madrid a copy of my March 20, 2017, (ECF No. 24) order.
Good cause appearing, IT IS FURTHER ORDERED that Madrid’s motion for
an extension of time [ECF No. 27] is GRANTED nunc pro tunc to April 20, 2017.
Madrid has until December 8, 2017, to advise the court in a sworn declaration
whether he wants to (1) voluntarily abandon his unexhausted claims and proceed
on the exhausted claims or (2) return to state court to exhaust his unexhausted
claims. Choosing option 2 will result in a denial of his petition without prejudice to
his ability to file a new petition in a separate case. If Madrid does not comply or
otherwise respond to this order, this action will be dismissed without prejudice and
without further prior notice.
DATED: November 8, 2017.
_______________________________
_____________________
__ __ ________ __
__
___
Jennifer A. Dorsey
Dorsey
ennifer A. Do e
n er
r
United States District J
United States District Judge
ted t
is ic

5

Id.

6

ECF Nos. 27, 28.

7

Rhines v. Weber, 544 U.S. 269 (2005).