Danjou v. Williams et al

Filing 5

ORDER that the Clerk shall FILE the petition for writ of habeas corpus. The Clerk shall refrain from serving the respondents at this time. FURTHER ORDERED that petitioner shall have thirty (30) days from the date of the entry of this order on the re cord within which to file with the court an amended petition. FURTHER ORDERED that if petitioner fails to respond to this order in the time and manner provided above, the court shall conclude that petitioner does not desire to pursue this matter, and shall enter an order dismissing this case, without prejudice. Signed by Judge Richard F. Boulware, II on 2/26/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GASTON JOSEPH DANJOU,
Petitioner,

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2:16-cv-00215-RFB-PAL

vs.

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ORDER
BRIAN E. WILLIAMS, et al.,

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Respondents.

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Petitioner Gaston Joseph Danjou has submitted a petition for a writ of habeas corpus and has
now paid the filing fee.

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The court notes that the petition does not contain any substantive habeas claims, but instead

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states that it is a “protective petition” under Pace v. DiGuglielmo, 544 U.S. 408 (2005). It further

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indicates that petitioner is seeking a stay of federal proceedings until state remedies are exhausted.

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Thus, petitioner appears to be under the impression that, by filing such a petition, he is ensuring that

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his federal claims are heard by this court (assuming relief is not granted in state court).

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The problem with petitioner’s proposed petition is that a petition for writ of habeas corpus under

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28 U.S.C. § 2254 cannot rely upon mere “notice” pleading, as may be found in other civil cases in the

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United States District Courts. Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977) (citing Advisory

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Committee Note to Rule 4, Rules Governing Cases under 28 U.S.C. § 2254). The petition must instead

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contain particularized facts which show that the petitioner is entitled to relief upon each specified

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ground. The facts alleged in the petition must be sufficient in detail to allow the court to determine

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whether the petition should be summarily dismissed, or should be given further review. Adams v.

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Armontrout, 897 F.2d 332, 334 (8th Cir. 1990).

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The petitioner’s proposed petition fails to satisfy the foregoing pleading standard. In addition,

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the petition’s effectiveness in protecting the timeliness of a future amended petition is undermined by

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the holding in Mayle v. Felix, 545 U.S. 644 (2005). In order for an amended claim to relate back for

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timeliness purposes it must share a common “core of operative facts” with a claim contained in the

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original petition. Mayle, 545 U.S. at 659. Accordingly, a petition that contains no substantive claims

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supported by operative facts does not suffice as a “protective petition.”

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As for his request for stay and abeyance, petitioner must demonstrate that there was good cause

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for the failure to exhaust his claims before proceeding in federal court, that at least one of his

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unexhausted claims is not plainly meritless, and that he has not engaged in intentionally dilatory

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litigation tactics. Rhines v. Weber, 544 U.S. 269, 278 (2005). Based on the pleading filed by the

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petitioner, the court is unable to determine whether petitioner meets any of these criteria.

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In light of the foregoing, the court will provide petitioner with the opportunity to file with the

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court an amended petition which corrects the pleading deficiencies identified above. If he chooses to

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do so, petitioner shall include in the amended petition any and all claims for habeas corpus relief of

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which petitioner is aware. Petitioner is advised, however, that if he chooses to proceed herein, his

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petition will be subject to dismissal if it contains unexhausted claims. See Rose v. Lundy, 455 U.S. 509,

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518-19 (1982) (holding that federal district courts may not adjudicate petitions for habeas corpus

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containing unexhausted claims). On the other hand, petitioner may be able to demonstrate that he is

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eligible for stay and abeyance as described above.

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IT THEREFORE IS ORDERED that the Clerk shall FILE the petition for writ of habeas
corpus. The Clerk shall refrain from serving the respondents at this time.

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IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date of the

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entry of this order on the record within which to file with the court an amended petition which corrects

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the deficiencies identified in this order and includes any and all claims for habeas corpus relief of which

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petitioner is aware.

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IT IS FURTHER ORDERED that if petitioner fails to respond to this order in the time and

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manner provided above, the court shall conclude that petitioner does not desire to pursue this matter,

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and shall enter an order dismissing this case, without prejudice.

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Dated this ______ day of February, 2017.
26th

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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