McLellan v. Baker et al

Filing 16

ORDER. IT IS ORDERED that this action is DISMISSED without prejudice for petitioner's failure to exhaust his available state-court remedies. The clerk of the court shall enter judgment accordingly and close this action. IT FURTHER IS ORDERED that a certificate of appealability will not issue. Signed by Judge James C. Mahan on 11/14/2018. (Copies have been distributed pursuant to the NEF - ADR)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 CURT MCLELLAN, 12 Petitioner, 13 14 Case No. 2:16-cv-03038-JCM-CWH ORDER v. RENEE BAKER, et al., 15 Respondents. 16 On August 23, 2018, the court granted in part respondents’ motion to dismiss (ECF No. 17 18 7), holding that petitioner had not exhausted his state-court remedies for ground E. ECF No. 15. 19 The court instructed petitioner to file a motion to dismiss the entire petition without prejudice, a 20 motion to dismiss ground E, or a motion for other relief. Id. If petitioner did not file anything 21 within thirty (30) days, then the court would dismiss the action as a mixed petition. Id. Petitioner 22 has not filed anything within the allotted time. The court will dismiss the action. The dismissal is without prejudice, but the court makes no statement about the timeliness 23 24 of any subsequently commenced action. Reasonable jurists would not find the court’s conclusion to be debatable or wrong, and the 25 26 court will not issue a certificate of appealability. 27 /// 28 /// 1 1 IT THEREFORE IS ORDERED that this action is DISMISSED without prejudice for 2 petitioner’s failure to exhaust his available state-court remedies. The clerk of the court shall enter 3 judgment accordingly and close this action. 4 IT FURTHER IS ORDERED that a certificate of appealability will not issue. 5 DATED: November 14, 2018. 6 ______________________________ JAMES C. MAHAN United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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