McNeal v. Williams et al

Filing 90

ORDER denying 85 Motion to Dismiss Counsel; ORDER denying 86 Motion to Refile Amended Petition; ORDER denying 89 Motion to Strike. Signed by Judge Jennifer A. Dorsey on 1/14/2022. (Copies have been distributed pursuant to the NEF - HAM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARCUS SHARIF MCNEAL,

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v.

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Case No. 2:16-cv-01618-JAD-EJY
Petitioner

Order Denying Petitioner’s Motions to
Dismiss Counsel, to Refile Amended
Petition, and to Strike Motion to Extend

BRIAN E. WILLIAMS, et al.,

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Respondents

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[ECF Nos. 85, 86, 89]

Petitioner Marcus Sharif McNeal brings this petition for writ of habeas corpus under 28

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U.S.C. § 2254 and moves to dismiss counsel, to refile his amended petition, and to strike motion

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to extend. 1 Because I do not find any of these requests meritorious, I deny them.

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Discussion

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On February 11, 2021, the respondents filed a motion to dismiss McNeal’s fifth amended

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petition. 2 On September 13, 2021, I granted in part and denied in part respondents’ motion to

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dismiss finding Ground III unexhausted. 3 McNeal had 30 days to either dismiss this

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unexhausted claim or seek other appropriate relief, such as a stay. 4 McNeal has filed pro se

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motions seeking to dismiss appointed counsel and to refile an amended habeas petition. 5

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McNeal’s counsel requested an extension of time to file his declaration until after a ruling on

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McNeal’s motion to dismiss counsel, which I granted. 6 McNeal now moves to strike the motion

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ECF Nos. 85, 86, 89.

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ECF No. 75.

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ECF No. 83.

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Id. at 10.

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ECF Nos. 85, 86.

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ECF Nos. 87, 88.

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to extend time to file his declaration informing whether he voluntarily dismisses Ground III or to

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return to state court to exhaust the claim. 7
McNeal requests dismissal of counsel because he “is tired of counsel belittling him on

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issues of importance to McNeal’s case and McNeal is tired of arguing with counsel.” 8 He

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further asserts that his motion is based on counsel’s failure to file any of McNeal’s exhausted

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grounds in his amended habeas petition. 9 McNeal has not presented an actual conflict of

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interest, an irreconcilable conflict, or any other basis for dismissing counsel. Counsel is not

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appointed to act as a mere scrivener to restate and reassert each and every allegation, claim and

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argument that a petitioner desires to pursue. Counsel instead is appointed to exercise her

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independent professional judgment as to which allegations, claims and arguments she believes

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collectively present the best chance of success. 10 As stated in previous orders, petitioner is not

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entitled to either appointed counsel of his choice or to an appointed counsel who fully agrees

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with him as to how to proceed. Therefore, McNeal’s motion to dismiss counsel is denied.

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McNeal further requests permission to refile an amended petition. 11 He did not attach an

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amended petition nor specify which amended petition he seeks to be refiled. 12 I deny McNeal’s

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motion to refile his amended petition. Further, I deny McNeal’s motion to strike the motion to

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extend time as moot. McNeal—through his counsel—has until February 14, 2022, to either

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voluntarily dismiss his unexhausted claim or move for a stay and abeyance.

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ECF Nos. 85, 86, 89.

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ECF No. 85 at 2.

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Id.

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Cf. Jones v. Barnes, 463 U.S. 745 (1983) (appellate counsel does not have a constitutional duty
to raise every nonfrivolous issue requested by a defendant).
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ECF No. 86.

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Id.

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Conclusion

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IT IS THEREFORE ORDERED that Petitioner Marcus Sharif McNeal’s Motion to

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Dismiss Counsel [ECF No. 85] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Refile Amended Petition [ECF
No. 86] is DENIED.
IT IS FURTHER ORDERED that Petitioner’s Motion to Strike [ECF No. 89] is
DENIED.
IT IS FURTHER ORDERED that Petitioner’s Counsel has until February 14, 2022, to
either: (1) inform this court in a sworn declaration that he wishes to dismiss only the unexhausted

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claim; or (2) file a motion for other appropriate relief, such as a motion for stay and abeyance

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asking this court to hold his exhausted claims in abeyance while he returns to state court to

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exhaust the unexhausted claims.

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Dated January 14, 2022

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U.S. District Judge Jennifer A. Dorsey

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