Fly v. Gentry

Filing 6

ORDER that petitioner to either (1) show cause why the Court should not dismiss this action as unexhausted or (2) file a motion for stay and abeyance by 8/30/2017; Clerk directed to add AG, Adam Laxalt, as counsel for respondents, and elect ronically serve a copy of the petition and order (e-served order and NEF regeneration of Petition on 07/31/2017); Respondents' counsel must enter a notice of appearance within 20 days, but need take no further action in this case unless and until the Court so orders. Signed by Judge Miranda M. Du on 07/31/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 DANE FLY, 11 12 13 Case No. 2:17-cv-01611-MMD-GWF Petitioner, ORDER v. JO GENTRY, 14 Respondent. 15 16 By a previous order (ECF No. 3), petitioner was directed to pay the filing fee in 17 order to proceed with his federal habeas petition. The Court has been informed that 18 petitioner has now paid the full filing fee. In addition, petitioner has filed an amended 19 petition. (ECF No. 5.) 20 The Court has reviewed the proposed petition under Habeas Rule 4. It appears as 21 if petitioner still has not completed state court exhaustion with respect to any of the claims 22 in his petition. A federal court may not grant habeas corpus relief on a claim not exhausted 23 in state court. 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of 24 federal-state comity, and is intended to allow state courts the initial opportunity to correct 25 constitutional deprivations. Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a 26 claim, a petitioner must fairly present the claim to the highest state court, and must give 27 that court the opportunity to address and resolve it. Duncan v. Henry, 513 U.S. 364, 365 28 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1, 10 (1992). 1 The Court will grant petitioner an opportunity to show cause why this action should 2 not be dismissed on account of his failure to exhaust any of his claims in state court. If 3 petitioner fails, within the time allowed, to make a prima facie showing that he has 4 exhausted, in state court, one or more of the claims he asserts, this case will be 5 dismissed. See Rose v. Lundy, 455 U.S. 509 (1982). 6 In the alternative, petitioner may request stay and abeyance as provided in Rhines 7 v. Weber, 544 U.S. 269 (2005). Under Rhines, a district court has discretion to stay a 8 mixed or wholly unexhausted petition to allow a petitioner time to present his or her 9 unexhausted claims to state courts. 544 U.S. at 276; see Mena v. Long, 813 F.3d 907, 10 912 (9th Cir. 2016) (holding a district court has the discretion to stay and hold in abeyance 11 fully unexhausted petitions under the circumstances set forth in Rhines). This Court will 12 not grant a Rhines stay, however, unless “the petitioner had good cause for his failure to 13 exhaust, his unexhausted claims are potentially meritorious, and there is no indication 14 that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 15 278. 16 It is therefore ordered that petitioner shall have thirty (30) days from the date of 17 entry of this order to either (1) show cause why the Court should not dismiss this action 18 as unexhausted or (2) file a motion for stay and abeyance.1 Failure to respond to this 19 order within the time allowed, or failure to make the required prima facie showing, will 20 result in the dismissal of this action. If petitioner maintains that any claims in the petition 21 have been exhausted, petitioner must attach with his response copies of any and all 22 papers that were accepted for filing in the state courts that he contends demonstrate that 23 the claims are exhausted. All factual assertions must be specific and supported by 24 competent evidence. 25 26 27 28 No extension of time will be granted to respond to this order except in the most compelling of circumstances. 1This order does not explicitly or implicitly hold that the petition otherwise is free of deficiencies. 2 1 It is further ordered that the Clerk add Adam Paul Laxalt, Attorney General of the 2 State of Nevada, as counsel for respondents, and electronically serve a copy of the 3 petition and this order upon the respondents. Respondents’ counsel must enter a notice 4 of appearance within twenty (20) days of the entry of this order, but need take no further 5 action in the case unless and until the Court so orders. 6 DATED this 31st day of July 2017. 7 8 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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