Smith v. Williams et al

Filing 46

ORDER. IT IS ORDERED that 44 Smith's motion for stay and abeyance is DENIED. See Order for details/deadlines. Signed by Judge Jennifer A. Dorsey on 9/26/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Robert Fitzgerald Smith,

2:15-cv-00465-JAD-PAL

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Petitioner

Order Denying Stay

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v.

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Brian E. Williams, et al.,

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[ECF No. 44]

Respondents

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I previously granted respondents’ motion to dismiss, finding that Smith had not exhausted

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his available state-court remedies for grounds 1, 2, 3, 4, 4(B), 5(B), 5(C), 5(D), 5(E), 6, 7, 10, 11,

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12, 13, and 18.1 Smith did not dispute that he had not exhausted those grounds. He asked me to

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stay the action while he returned to state court.2 I denied Smith’s request because he did not

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show that he had “good cause for his failure to exhaust,” that “his unexhausted claims are

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potentially meritorious,” and that he had not “engaged in intentionally dilatory litigation tactics”

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as required by Rhines v. Weber.3 I gave Smith three options: (1) he could voluntarily abandon the

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unexhausted claims; (2) he could return to state court, and the court would deny the petition

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without prejudice; or (3) he could move to hold the exhausted claims in abeyance while he

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returned to state court.4 I advised Smith that if he moved to stay the action, he must satisfy the

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Rhines test.5

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ECF No. 43 at 2.

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ECF No. 41.

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Rhines v. Weber, 544 U.S. 269, 277–78 (2005); ECF No. 43 at 3–4.

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ECF No. 43 at 4.

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Id. at 4–5.

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With this motion,6 Smith chooses the third option, but he does not discuss the Rhines

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standards, and he does not amend his complaint to dismiss the unexhausted claims so that I may

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stay the exhausted claims as suggested in Kelly v. Small.7 Under these circumstances, I cannot

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issue a stay.

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I did not direct Smith to designate an alternative choice if a stay is denied, and he did not

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provide one. I cannot assume how he would want to resolve this matter. If I dismissed the

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unexhausted grounds and issued a ruling on the merits of the exhausted grounds, then Smith

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likely would be prevented from litigating his unexhausted grounds in federal court.8 If I

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dismissed this action so that Smith could return to state court, he would face state-law procedural

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bars filing an untimely and a successive petition, and then he would also face the federal statute

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of limitations if he commenced a new habeas corpus action in this court.9 Either way, he faces

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consequences that are not favorable to him. Smith needs to decide for himself what to do.

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Accordingly, IT IS THEREFORE ORDERED that Smith’s motion for stay and abeyance
[ECF No. 44] is DENIED.

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IT IS FURTHER ORDERED that Smith has until October 26, 2017 to do one of the

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following: (1) inform this court in a sworn declaration that he wishes to dismiss the unexhausted

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grounds of his third amended petition and proceed only on the remaining grounds for relief; or

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(2) inform this court in a sworn declaration that he wishes to dismiss this action to return to state

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court to exhaust his state remedies with respect to the claims set out in the unexhausted grounds.

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These are the only two options that I will now consider. Failure to do one of these two things

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will result in the dismissal of this action without further prior notice.

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IT IS FURTHER ORDERED that if Smith elects to dismiss the unexhausted grounds of

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ECF No. 44.

Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), as reaffirmed by King v. Ryan, 564 F.3d 1133
(9th Cir. 2009).

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See 28 U.S.C. § 2244(b).

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See Nev. Rev. Stat. §§ 34.726, 34.810; 28 U.S.C. § 2244(d).
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his third amended petition and proceed on the remaining grounds, respondents must file and

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serve an answer that must comply with Rule 5 of the Rules Governing Section 2254 Cases in the

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United States District Courts, within 45 days after Smith serves his declaration dismissing those

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grounds. Smith will have 45 days from the date on which the answer is served to file and serve a

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reply.

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DATED: September 26, 2017.

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_______________________________
______________________
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Jennifer A. Dorsey
ennifer A. Dorsey
ni
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r
United States District Judge
ed States District Judge
d ta
ict ud
ud

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