Strohmeyer v. Neven et al

Filing 10

ORDER that 7 Motion for a Stay, or in the Alternative, a Motion to Withdraw the Petition is GRANTED in part and DENIED in part. This action is DISMISSED without prejudice, and a certificate of appealability is denied. The Clerk is instructed to CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 7/13/16. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Jeremy Strohmeyer,
2:15-cv-02161-JAD-CWH

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Petitioner

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Order Granting in Part and Denying in
Part Motion for Stay, or in the
Alternative, to Withdraw Petition, and
Dismissing and Closing Case

v.
Dwight Neven, et al.,

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Respondents

[ECF No. 7]

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Jeremy Strohmeyer filed a § 2254 petition to challenge prison disciplinary proceedings

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against him. But in his two grounds for relief, Strohmeyer did not allege what happened during these

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disciplinary proceedings; he alleged instead that the state courts’ handling of his post-conviction

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habeas petition and motion for injunction violated his due-process and equal-protection rights. I thus

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gave Strohmeyer until May 20, 2016, to file an amended petition if he could plead true facts to show

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a disciplinary due-process violation, and I cautioned him that errors in the state post-conviction

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review process are not addressable through federal habeas proceedings.1 I also warned him that if he

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did not file an amended petition by this deadline, this action would be dismissed.2

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The deadline has expired and Strohmeyer has not filed an amended petition; he has filed a

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motion for a stay, or in the alternative, a motion to withdraw his petition.3 In his motion, Strohmeyer

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explains that he originally brought this action to challenge the state courts’ handling of his motion

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for injunction and that he cannot yet bring a § 2254 petition to challenge the prison disciplinary

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proceedings against him because he has not yet exhausted his state-court remedies for these claims.4

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He requests a stay in this case pending exhaustion of these claims in state court, or alternatively, that

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ECF No. 4.

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Id.

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ECF No. 7.

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Id. at 1.

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he be permitted to withdraw his petition.

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A stay of this action would be appropriate if Strohmeyer were reasonably confused about the

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timeliness of his state habeas petition. For example, had Strohmeyer thought that his state petition

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was timely but the state courts determined that it was not, then the state petition would not toll the

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federal limitations period under 28 U.S.C. § 2244(d)(2). And if the state petition took long enough

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to reach its final disposition, the federal limitations period may have expired. The Supreme Court

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has noted that a person in that position may file a “protective” federal habeas petition and then move

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for a stay of the action.5

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Two problems with staying this action exist. First, Strohmeyer has not alleged anything

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indicating that he is confused about the timeliness of his pending state habeas petition. Second,

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courts should not grant a stay if the claims are plainly meritless.6 Strohmeyer’s petition contains two

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claims of error in his state post-conviction proceedings that are not addressable through federal

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habeas proceedings.7

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A stay in these circumstances would also serve no purpose. Even if I granted a stay and

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Strohmeyer exhausted his available state-court remedies, he would still need to file an amended

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petition alleging grounds with potential merit. These new grounds would not relate back to the

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grounds in the current petition because they would not share a common core of operative facts.8 The

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timeliness of the grounds in the amended petition would thus rely solely on when that petition was

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filed. Because a stay of this action would serve no purpose in these circumstances and Strohmeyer

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admits that he has not exhausted his prison-disciplinary claims in state court, I dismiss this action

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without prejudice. A dismissal without prejudice does not effect the timeliness of any later

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commenced action, but Strohmeyer is cautioned that he remains responsible for calculating the

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Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005).

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Rhines v. Weber, 544 U.S. 269, 277 (2005).

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Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir. 1989).

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See Mayle v. Felix, 545 U.S. 644, 664 (2005) (relation back requires common core of operative
facts).
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federal limitations period under 28 U.S.C. § 2244(d). And because reasonable jurists would not find

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my conclusions to be debatable or wrong, I decline to issue a certificate of appalability.

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Conclusion
IT IS HEREBY ORDERED that Strohmeyer’s motion for a stay, or in the alternative, a

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motion to withdraw the petition [ECF No. 7] is GRANTED in part and DENIED in part. This

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action is DISMISSED without prejudice, and a certificate of appealability is denied.

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The Clerk of Court is instructed to CLOSE THIS CASE.

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Dated this 13th day of July, 2016.

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_________________________________
Jennifer A. Dorsey
United States District Judge

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