Burrell v. Warden of High Desert State Prison et al

Filing 11

ORDER. IT IS ORDERED that 2 petitioner's motion for appointment of counsel is DENIED. IT FURTHER IS ORDERED that 10 respondents' motion for enlargement of time (first request) is GRANTED. IT FURTHER IS ORDERED that 8 petitioner 's motion for stay and abeyance is GRANTED. IT FURTHER IS ORDERED that this action is STAYED pending exhaustion of the unexhausted claims. IT FURTHER IS ORDERED that the clerk of court shall administratively close this action until such time as the court grants a motion to reopen the action. Signed by Judge James C. Mahan on 9/21/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARCUS BURRELL,

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Petitioner,

Case No. 2:18-cv-00037-JCM-CWH
ORDER

v.
WARDEN, HIGH DESERT STATE
PRISON, et al.,
Respondents.

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Before the court are petitioner’s motion for stay and abeyance (ECF No. 8) and
respondents’ opposition (ECF No. 9). The court grants petitioner’s motion.
Petitioner asks for a stay of this action to let him present claims of ineffective assistance

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of counsel in state court. In King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), the court of appeals

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held that its three-step method of staying a federal habeas corpus action without a requirement of

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showing good cause is still available. First, a petitioner files in federal court a motion to stay and

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an amended petition that contains only exhausted grounds, and the federal court stays the action.

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Second, the petitioner exhausts his unexhausted grounds in a post-conviction petition filed in the

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state courts. Third, the petitioner files in federal court a motion to reopen the action and a further

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amended petition that contains all grounds for relief. Id. at 1138-39.

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All the claims in the newest amended petition must relate back to properly exhausted

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claims left pending in federal court. Id. at 1142. A stay under King thus is likely to result in

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grounds that are exhausted but untimely. Petitioner acknowledges that. ECF No. 8, at 2. Given

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that he knows the risks, the court grants the motion. Petitioner does not need to file an amended

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petition first, because the petition (ECF No. 6) currently contains only one claim, which is

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exhausted.

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Respondents have filed a motion for enlargement of time (first request) (ECF No. 10).

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They ask for additional time to file a response to the petition pending the court’s resolution of the

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motion for stay. The court grants this motion.

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In the order of May 29, 2018 (ECF No. 5), the court denied petitioner’s motion for

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appointment of counsel but omitted an order to that effect. The court corrects the omission now.

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IT THEREFORE IS ORDERED that petitioner’s motion for appointment of counsel (ECF
No. 2) is DENIED.
IT FURTHER IS ORDERED that respondents’ motion for enlargement of time (first
request) (ECF No. 10) is GRANTED.
IT FURTHER IS ORDERED that petitioner’s motion for stay and abeyance (ECF No. 8)
is GRANTED.
IT FURTHER IS ORDERED that this action is STAYED pending exhaustion of the

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unexhausted claims. Petitioner shall return to this court with a motion to reopen within forty-five

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(45) days of issuance of the remittitur by the Nevada Supreme Court at the conclusion of the state

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court proceedings. Further, petitioner or respondents otherwise may move to reopen the action

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and seek any relief appropriate under the circumstances.

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IT FURTHER IS ORDERED that the clerk of court shall administratively close this action
until such time as the court grants a motion to reopen the action.
DATED: September 21, 2018.

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______________________________
JAMES C. MAHAN
United States District Judge

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