McLellan v. Baker et al

Filing 27

ORDER Re: 26 Petition for Writ of Habeas Corpus. IT IS ORDERED that the clerk of the court STRIKE the petition for a writ of habeas corpus (ECF No. 26 ) in this action, open a new civil action, and file the petition for a writ of habeas corpus in that action. Signed by Judge James C. Mahan on 2/14/2022. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:16-cv-03038-JCM-CWH Document 27 Filed 02/14/22 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CURT MCLELLAN,

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Petitioner,

Case No. 2:16-cv-03038-JCM-CWH
ORDER

v.
RENEE BAKER, et al.,
Respondents.

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This is a counseled, closed habeas corpus action under 28 U.S.C. § 2254. On August 23,

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2018, the court determined that petitioner Curt McLellan had not exhausted his state-court

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remedies for ground E of the petition. ECF No. 15. The court directed McLellan to decide what

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to do, with the provision that if he did not respond then the court would dismiss the action. Id.

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McLellan did not respond, and the court dismissed the action on November 14, 2018. ECF No.

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16. On March 9, 2020, McLellan filed a motion to reopen the case and a motion to stay the case.

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ECF No. 18, 19. On April 10, 2020, the court denied the motion, ruling that McLellan had not

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demonstrated extraordinary circumstances under Rule 60(b)(6) of the Federal Rules of Civil

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Procedure for relief from the judgment. ECF No. 25.

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McLellan now has filed in this action a new petition for a writ of habeas corpus. ECF No.

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26. McLellan put the case number of this action on the petition, but for several reasons the court

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concludes that the filing in this action was an error. First, McLellan has not again sought relief
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Case 2:16-cv-03038-JCM-CWH Document 27 Filed 02/14/22 Page 2 of 2

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from the judgment, and the court denied his earlier request to reopen the action. Second,

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McLellan has paid the $5.00 filing fee, which he would not have done if he had intended to seek

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relief from the judgment. Third, the title of the petition is "Petition for Writ of Habeas Corpus,"

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without any indication that McLellan intended to file an amended petition in this action. All

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those factors indicate that the petition should have been filed in a new action. The court will take

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steps accordingly.

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IT THEREFORE IS ORDERED that the clerk of the court STRIKE the petition for a writ

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of habeas corpus (ECF No. 26) in this action, open a new civil action, and file the petition for a

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writ of habeas corpus in that action.

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DATED: February 14, 2022.

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______________________________
JAMES C. MAHAN
United States District Judge

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