Barrera v. Williams et al

Filing 34

ORDER. IT IS THEREFORE ORDERED that 32 petitioner's motion for partial dismissal without prejudice is GRANTED in part. Grounds 1 through 6 and 8 of 7 the petition are DISMISSED from this action. IT IS FURTHER ORDERED that respondents sh all have forty-five (45) days from the date of entry of this order to file and serve an answer, which shall comply with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts. Petitioner shall have forty-five (45) days from the date on which the answer is served to file a reply. Signed by Judge James C. Mahan on 1/5/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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HIGINIO BARRERA,

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Petitioner,

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vs.

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Case No. 2:15-cv-01515-JCM-GWF

BRIAN WILLIAMS, SR., et al.

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ORDER

Respondents.

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The court dismissed ground 7 of the petition (ECF No. 7) with prejudice because it was

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procedurally defaulted (ECF No. 29). The court also found that grounds 1 through 6 and 8 were not

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exhausted. (Id.) Petitioner has filed a motion for partial dismissal without prejudice (ECF No. 32).

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Although the dismissal of grounds 1 through 6 and 8 technically is without prejudice, petitioner

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likely will be unable to litigate those grounds. The bar against successive petitions, 28 U.S.C.

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§ 2244(b), and the one-year statute of limitations, 28 U.S.C. § 2244(d)(1), probably will prevent

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future litigation of those grounds. Nevada has similar laws that make litigation of the grounds in

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state court unlikely.

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Petitioner also asks the court for a partial dismissal “of ground 7 as procedurally defaulted

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(“unexhausted”) to resolve this matter [in] State Court with the [possibility] to refile again, if the

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State of Nevada does not find an appropriate relief.” ECF No. 32, at 1. The court agrees with

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respondents. Ground 7 is exhausted, but it also is procedurally defaulted because the Nevada

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Supreme Court determined that the corresponding ground in the state habeas corpus petition could

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have been raised on direct appeal. This court determined that petitioner had not demonstrated actual

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innocence to excuse the procedural default. ECF No. 29, at 3-5. If petitioner tried to litigate this

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ground again in state court, and then he tried to litigate this ground again in this court, the result

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would be the same. That is why the court dismissed ground 7 with prejudice. Petitioner cannot

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litigate ground 7 again.

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IT IS THEREFORE ORDERED that petitioner’s motion for partial dismissal without

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prejudice (ECF No. 32) is GRANTED in part. Grounds 1 through 6 and 8 of the petition (ECF No.

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7) are DISMISSED from this action.

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IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from the date
of entry of this order to file and serve an answer, which shall comply with Rule 5 of the Rules

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Governing Section 2254 Cases in the United States District Courts. Petitioner shall have forty-five

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(45) days from the date on which the answer is served to file a reply.

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DATED: January 5, 2017.

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_________________________________
JAMES C. MAHAN
United States District Judge

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