Fly v. Gentry

Filing 12

ORDER that the petition ECF No. 5 is hereby dismissed without prejudice; Clerk directed to enter judgment; Court declines to issue certificate of appealability; Fly's "emergency motion" ECF No. 10 is denied as moot. Signed by Judge Miranda M. Du on 12/13/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DANE FLY,

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Case No. 2:17-cv-01611-MMD-GWF
Petitioner,

ORDER

v.
JO GENTRY,
Respondent.

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On July 31, 2017, this Court entered an order in this habeas corpus proceeding

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directing petitioner Dane Fly to either (1) show cause why the Court should not dismiss

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his petition as unexhausted or (2) file a motion for stay and abeyance. (ECF No. 6.) Fly

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has filed his response to the order to show cause. (ECF No. 8.) For the reasons that

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follow, Fly’s petition will be dismissed.

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Fly’s response to the order to show cause consists of two orders entered by

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Nevada appellate courts. One was issued by the Nevada Court of Appeals and affirmed

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the lower court’s decision to deny Fly’s state post-conviction petition on the merits. (ECF

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No. 8 at 4-7.) According to the order, Fly had raised claim in that proceeding that his

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counsel was ineffective for failing to investigate and present certain evidence at

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sentencing. The other order, entered by the Nevada Supreme Court, dismissed for lack

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of jurisdiction a notice of appeal in relation to Fly’s judgment of conviction. (Id. at 9.)

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The three claims in Fly’s petition before this Court all involve the application of

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Nevada’s habitual criminal statute to his sentence. (ECF No. 5.) Fly has made no showing

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that he has presented any of these claims to the Nevada courts. And, despite being

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advised of his opportunity to do so, he has not filed a motion asking this Court to stay

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proceedings and hold them in abeyance while he exhausts state court remedies. See

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Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding a district court has the discretion

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to stay and hold in abeyance fully unexhausted petitions under the circumstances set

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forth in Rhines v. Weber, 544 U.S. 269 (2005)). Consequently, this Court must dismiss

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Fly’s petition. See Rose v. Lundy, 455 U.S. 509, 510 (1982).

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For the foregoing reasons, the Court finds that summary dismissal of the petition

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is appropriate under Rule 4 of the Rules Governing Section 2254 Cases In United States

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District Courts. It is therefore ordered that the petition (ECF No. 5) is hereby dismissed

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without prejudice. The Clerk will enter judgment accordingly.

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It is further ordered that the Court declines to issue certificate of appealability.

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It is further ordered that Fly’s “emergency motion” (ECF No. 10) is denied as moot.1

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DATED this 13th day of December 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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motion asks this Court to grant relief based on Fly’s claim that the Nevada
Department of Corrections has failed to properly apply statutory good-time credits to his
sentence. Fly did not include this claim in his habeas petition, but instead merely filed an
“addendum” without asking the Court for leave to supplement or amend his petition. (ECF
No. 9.) Moreover, it appears as if Fly has also failed to properly exhausted state court
remedies for this claim, as well. (Id. at 26-27.)
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