Madrid v. Neven et al

Filing 32

ORDER. IT IS HEREBY ORDERED that this case is DISMISSED without prejudice. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 11/27/2017. (Copies have been distributed pursuant to the NEF - ADR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

Mariano Madrid,

2:15-cv-00118-JAD-PAL

5

Petitioner

Order Dismissing Case

6

v.

7

Dwight Neven, et al.,

8

Respondents

9
10

Pro se petitioner Mariano Madrid is serving two consecutive life sentences with the

11

possibility of parole after 20 years after his conviction for first-degree murder with a deadly-

12

weapon enhancement.1 He filed this mixed petition for a writ of habeas corpus with exhausted

13

and unexhausted claims, and I directed Madrid to choose one of three options: (1) abandon the

14

unexhausted claims and proceed on the exhausted claims only; (2) dismiss this federal action and

15

return to state court to exhaust his unexhausted claims; or (3) file a motion to stay and abey his

16

exhausted claims and return to state court to exhaust his unexhausted claims.2
Madrid chose the third option, but he did not make the required showing under Rhines v.

17
18

Weber3 to permit me to grant him a Rhines stay, so I denied his motion and directed him to

19

choose one of the other two options.4 Instead of choosing one of the other two options, Madrid

20

filed a renewed motion to stay and abey his exhausted claims that still failed to satisfy Rhines, so

21
22
23
24
25

1

NEVADA DEP’T OF CORRECTIONS, https://www.doc.nv.gov/Inmates/Home/ (last visited Nov.
22, 2017) (inmate search by name Mariano Madrid or by offender ID 1006135).

2

ECF No. 20.

3

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

4

ECF No. 24.

26
27
28

1

I denied that as well.5

2

I gave Madrid one more opportunity to either abandon his unexhausted claims and

3

proceed on the exhausted ones or return to state court to exhaust his unexhausted claims. Madrid

4

decided to return to state court to exhaust his unexhausted claims,6 so I dismiss this action

5

without prejudice to his ability to file a new, separate petition for habeas corpus after he exhausts

6

his claims in state court—subject of course to any statutes of limitations. I also decline to issue

7

Madrid a certificate of appealability because reasonable jurists would not find my decision to

8

dismiss this action without prejudice to be debatable or wrong.

9
10

Accordingly, IT IS HEREBY ORDERED that this case is DISMISSED without
prejudice.

11

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

12

The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE

13

THIS CASE.

14

DATED: November 27, 2017.

15

_______________________________
_____________________
_ _____ _ ___ __
____
___
U.S. District Judge Jennifer A Dorsey
.S. District Judge Jennifer A.
ic dg en fe
ic dg en fe

16
17
18
19
20
21
22
23
24
25
26
27

5

ECF No. 30.

28

6

ECF No. 31.
2