Harlan v. Williams et al

Filing 24

ORDER that Petitioner's 5 Petition for Writ of Habeas Corpus is dismissed without prejudice to his ability to file a new, separate petition. The Clerk of Court is directed to enter Judgment accordingly and close this case. Signed by Judge Jennifer A. Dorsey on 4/9/2018. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Will H. Harlan,

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Case No.: 2:15-cv-00799-JAD-PAL

Petitioner

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v.

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Order Dismissing Case

Brian E. Williams, et al.,

[ECF No. 5]

Respondents

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On September 29, 2016, I found the petition for writ of habeas corpus in this case to be

10 mixed, containing both exhausted and unexhausted claims. I directed petitioner Will H. Harlan
11 to select one of three options: (1) submit a sworn declaration advising the court that he is
12 voluntarily abandoning his unexhausted claims and will proceed on the exhausted claims only;
13 (2) submit a sworn declaration advising the court that he will return to state court to exhaust his
14 unexhausted claims, in which case his federal habeas petition will be denied without prejudice;
15 or (3) file a motion asking the court to hold his exhausted claims in abeyance while he returns to
16 state court to exhaust his unexhausted claims. 1 Harlan responded with a document indicating
17 that he wishes to return to state court and is therefore selecting “option two.” 2 In light of certain
18 other statements made in the notice, it was unclear whether he actually wanted his petition to be
19 denied without prejudice. I therefore directed petitioner to file a notice clarifying his choice. 3
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On December 4, 2017, Harlan filed a motion for stay and abeyance, which I denied

21 because he failed to make the requisite showing. 4 I directed petitioner to select between the
22 remaining two options—abandoning his unexhausted claims or dismissing the entire petition so
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ECF No. 15.

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ECF No. 19.

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ECF No. 21.

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ECF Nos. 22, 23.
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1 that he could return to state court—on or before February 12, 2018. Harlan has failed to respond
2 to my order, and the time for doing so has long since expired.
In my prior orders, I advised Harlan that his failure to make a selection from the available

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4 options would result in dismissal of this petition without further prior notice. Because he has
5 failed to elect to either abandon his unexhausted claims or to dismiss the entire petition without
6 prejudice, the petition in this case remains mixed and must therefore be dismissed under Rose v.
7 Lundy. 5
Accordingly, IT IS HEREBY ORDERED that Harlan’s petition for a writ of habeas

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9 corpus [ECF No. 5] is dismissed without prejudice to his ability to file a new, separate petition.
10 By dismissing this case without prejudice, I do not make any implied findings about the
11 limitations period. Harlan remains responsible for calculating the federal limitations period and
12 timely filing his claims. The Clerk of Court is directed to ENTER JUDGMENT accordingly
13 and CLOSE THIS CASE.
Dated: April 9, 2018

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_______________________________
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U.S. District Judge Jennifer A. Dorsey
District Judge Jennif
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Rose v. Lundy, 455 U.S. 509, 510 (1982).
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