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