Hernandez v. Gentry et al

Filing 6

ORDER. IT IS HEREBY ORDERED that 3 the order and 4 judgment entered on October 26 and 27, 2017, respectively, are VACATED. The Clerk of Court is directed to DETACH and FILE 1 -1 the habeas petition. The Clerk of Court is also directed to ADD Ada m Paul Laxalt, Attorney General of the State of Nevada, as counsel for respondents, and electronically SERVE a copy of the petition and this order upon the respondents. See Order for details/deadlines. Signed by Judge Jennifer A. Dorsey on 11/20/2017. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Robert Michael Hernandez,

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Petitioner

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Order Vacating Judgment and Screening
Petition

v.

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2:17-cv-02565-JAD-CWH

Jo Gentry, et al.,

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Respondents

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On October 26, 2017, I dismissed this habeas corpus action because petitioner Robert

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Hernandez had failed to either file a motion for leave to proceed in forma pauperis or pay the

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required filing fee.1 The following day judgment was entered in favor of respondents and against

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Hernandez.2 When I dismissed this action, I did so without prejudice and ordered Hernandez to

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file a new habeas action after paying the filing fee or filing a completed pauper application if he

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wanted to pursue his habeas claims. Hernandez did not follow my directions; instead he paid the

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$5.00 filing fee on November 8, 2017.3 But in the interest of judicial efficiency, I will set aside

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the dismissal and judgment, direct the Clerk to file Hernandez’s habeas petition, and I will screen

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the petition.

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I have reviewed the petition under Rule 4 of the Rules Governing Habeas Corpus Cases

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Under Section 2254. Hernandez has not exhausted with state-court post-conviction relief the

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lone claim in his petition. A federal court may not grant habeas corpus relief on a claim not

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exhausted in state court.4 The exhaustion doctrine is based on the policy of federal-state comity

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ECF No. 3.

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ECF No. 4.

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ECF No. 5.

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28 U.S.C. § 2254(b) (2012).

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and is intended to allow state courts the initial opportunity to correct constitutional deprivations.5

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To exhaust a claim, a petitioner must fairly present the claim to the highest state court and give

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that court the opportunity to address and resolve it.6

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In this federal habeas action, Hernandez asserts only that he was deprived of his right to

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effective assistance of counsel under the Sixth Amendment. But he indicates in his petition that

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he has yet to file a state post-conviction petition with respect to the conviction and sentence he is

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asking me to review.7 Accordingly, Hernandez may not proceed in this action without first

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exhausting his claims in state court.

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I will grant Hernandez an opportunity to show cause why this action should not be

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dismissed due to his failure to exhaust his claim in state court. If he fails to show that he

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exhausted his ineffective-assistance-of-counsel claim within the time allowed, this case will be

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dismissed.8

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Hernandez may alternatively file a motion to stay and abey his unexhausted claim as

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provided in Rhines v. Weber.9 Under Rhines, a district court has discretion to stay a mixed or

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wholly unexhausted petition to allow a petitioner time to present his or her unexhausted claims to

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state courts.10 I will not grant a Rhines stay, however, unless Hernandez “had good cause for his

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failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication

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Picard v. Conner, 404 U.S. 270, 275 (1971).

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Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S.
1, 10 (1992).

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ECF No. 1-1 at 1 (“Did you file a petition for post-conviction relief or petition for habeas
corpus in state court?” Hernandez checkmarked “No.”).
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See Rose v. Lundy, 455 U.S. 509 (1982).

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Rhines v. Weber, 544 U.S. 269 (2005).

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544 U.S. at 276; see Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding a district court
has the discretion to stay and hold in abeyance fully unexhausted petitions under the
circumstances set forth in Rhines).
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that the [he] engaged in intentionally dilatory litigation tactics.”11

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Accordingly, IT IS HEREBY ORDERED that the order and judgment entered on October
26 and 27, 2017, [ECF Nos. 3 and 4] respectively, are VACATED.

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The Clerk of Court is directed to DETACH and FILE the habeas petition [ECF No. 1-

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1]. The Clerk of Court is also directed to 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 petition

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and this order upon the respondents.

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IT IS FURTHER ORDERED that respondents’ counsel must enter a notice of

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appearance by December 11, 2017, but need not take further action in the case unless and until

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the court so orders.

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IT IS FURTHER ORDERED that Hernandez has until December 21, 2017, to either (1)

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show cause why I should not dismiss this action as unexhausted, or (2) file a motion to stay and

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abey this unexhausted claim while he exhausts it first in state court.12 If Hernandez does not

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respond or fails to show good cause, this case will be dismissed without further prior

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notice. If Hernandez responds that his lone claim has been exhausted, he must attach with his

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response copies of any and all papers that were accepted for filing in the state courts that

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exhausted it. All factual assertions must be specific and supported by competent evidence.

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No extensions of time will be granted to respond to this order except in the most
compelling of circumstances.

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DATED: November 20, 2017.

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_______________________________
____________________
_ __________ __
__
Jennifer A. Dorsey
Jennifer A. Dorsey
n fe
f
e
United States District Jud
United States District Judge
it
ited
st ct
st ct

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Rhines, 544 U.S. at 278.

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This order does not explicitly or implicitly hold that the petition otherwise is free of
deficiencies.
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