Harris v. State of Nevada

Filing 43

ORDER. IT IS ORDERED that 41 petitioner's motion to stay is GRANTED. IT FURTHER IS ORDERED that this action is STAYED pending exhaustion of the unexhausted claims. Petitioner must return to this court with a motion to reopen within fortyfiv e (45) days of issuance of the remittitur by the Nevada Supreme Court at the conclusion of the state court proceedings. Further, petitioner or respondents otherwise may move to reopen the action and seek any relief appropriate under the circumstances. Signed by Judge Andrew P. Gordon on 7/28/2020. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:16-cv-02891-APG-DJA Document 43 Filed 07/28/20 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 Tiyacte Harris,
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Petitioner,

5 v.

Case No.: 2:16-cv-02891-APG-DJA
Order Granting Motion to Stay
[ECF No. 41]

6 Natalie Wood, et al.,
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Respondents.
This is a habeas corpus action under 28 U.S.C. § 2254. Currently before the court is

9 petitioner's motion to stay. ECF No. 41. Respondents do not oppose the motion. ECF No. 42. I
10 find good cause exists to grant the motion.
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In my order of June 27, 2019, I described the unusual history of petitioner's state-court

12 post-conviction proceedings. ECF No. 19. To summarize, the state district court denied Harris'
13 first post-conviction habeas corpus petition for reasons that might benefit from further reflection
14 under state law. Id. at 3-4. More importantly for the federal questions of exhaustion and
15 procedural default, in the appeal from the denial of Harris' second state post-conviction petition,
16 the Nevada Court of Appeals noted that the time to appeal the denial of the first post-conviction
17 petition still was open under state law. It appeared that Harris still had the opportunity for a state
18 appellate court to rule on the merits of his claims. Id. at 4-5. Consequently, I denied
19 respondents' motion to dismiss for failure to exhaust and for procedural default. Id. at 5. I also
20 appointed counsel to represent Harris because of the procedural complexity of the case. Id.
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Harris has filed a counseled third amended petition. ECF No. 39. He also has filed a

22 motion to stay. ECF No. 41. Harris states that he will resume litigation in his first state post23 conviction habeas corpus proceedings. He asks to stay this action until the conclusion of those

Case 2:16-cv-02891-APG-DJA Document 43 Filed 07/28/20 Page 2 of 2

1 proceedings. Respondents do not oppose the request. ECF No. 42. I find that good cause exists
2 to stay the action. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines v. Weber,
3 544 U.S. 269, 278 (2005)).
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IT THEREFORE IS ORDERED that petitioner’s motion to stay (ECF No. 41) is

5 GRANTED.
6

IT FURTHER IS ORDERED that this action is STAYED pending exhaustion of the

7 unexhausted claims. Petitioner must return to this court with a motion to reopen within forty8 five (45) days of issuance of the remittitur by the Nevada Supreme Court at the conclusion of the
9 state court proceedings. Further, petitioner or respondents otherwise may move to reopen the
10 action and seek any relief appropriate under the circumstances.
11

IT FURTHER IS ORDERED that the clerk of court administratively close this action

12 until such time as the court grants a motion to reopen the action.
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Dated: July 28, 2020.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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