Patterson v. Williams, et al.

Filing 18

ORDER that 6 Motion to Dismiss is GRANTED. This action is DISMISSED WITHOUT PREJUDICE. FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. Signed by Judge James C. Mahan on 4/11/16. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
8

MICHAEL PATTERSON,

9

Petitioner,
2:15-cv-00362-JCM-VCF

10

vs.

11

BRIAN E. WILLIAMS, SR., et al.,

ORDER
12
13

Respondents.
_______________________________/

14
15

In this habeas corpus action, the respondents filed a motion to dismiss (ECF No. 6) on

16

September 10, 2015. The petitioner, Michael Patterson, filed a response to the motion to dismiss

17

on October 12, 2015 (ECF No. 16). The respondents filed a reply in support of their motion on

18

October 14, 2015 (ECF No. 17).

19

In their motion to dismiss, one of the respondents’ arguments is that Patterson has not yet

20

completed his state habeas corpus litigation, and “[a]s a result, he has filed a mixed petition in this

21

proceeding because none of his claims of ineffective assistance of counsel were ever presented to the

22

Nevada Supreme Court for review.” Motion to Dismiss (ECF No. 6), p. 1. Respondents argue that

23

“[t]he entire petition should therefore be dismissed. Id.

24

In response, Patterson states that his first state-court habeas petition is pending -- that it “has

25

not yet been heard.” Response to Motion to Dismiss (ECF No. 16), p. 3. Patterson does not make

26

any representation that there is any question regarding the timeliness of the filing of his state-court

1

habeas petition. See id. Patterson therefore states that he “would agree that a federal protective

2

petition is not necessary at this time.” Id. at 3. Patterson states that dismissal without prejudice is

3

appropriate. See id.

4

In their reply, respondents continue to assert that Patterson’s case should be dismissed in its

5

entirety. See Reply (ECF No. 17). Respondents argue, however, that two of Patterson’s claims

6

(Grounds 16C and 16J) are procedurally defaulted and should be dismissed, on that basis, with

7

prejudice. See id.

8
9

As Patterson has not yet completed his first state-court habeas litigation, and because there
appears to be no question with respect to the timeliness of the filing of the state habeas petition, the

10

court finds that this federal habeas action is premature, and that it is subject to dismissal. See Rose v.

11

Lundy, 455 U.S. 509, 518 (1982). Under the circumstances here, the court declines to adjudicate any

12

claim in this action, on procedural default grounds or otherwise. The dismissal of this action will be

13

without prejudice.

14
15
16

IT IS THEREFORE ORDERED that respondents’ Motion to Dismiss (ECF No. 6) is
GRANTED. This action is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.

17
18

Dated this _____2016. April, 2016.
April 11, day of

19
20
UNITED STATES DISTRICT JUDGE
21
22
23
24
25
26

2