Elliott v. Benedetti et al

Filing 33

ORDER. IT IS ORDERED that petitioner's motion 31 is GRANTED solely to the extent that Grounds 5, 8 and 9 are DISMISSED without prejudice.IT FURTHER IS ORDERED that respondents shall file a response to the remaining grounds in the petition as described in the prior order 30 and pursuant to paragraphs (2) and (3) on pages 2-3 of the scheduling order 11 within forty-five (45) days of entry of this order. IT FURTHER IS ORDERED that petitioner shall have forty-five (45) days from service of the response within which to mail for filing either an opposition to a motion to dismiss or a reply to an answer. This deadline shall override any shorter deadline in any later form order issued pursuant to the Klingele decision. (Responses due by 6/27/2011.) Signed by Judge Larry R. Hicks on 5/12/2011. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ROBERT W. ELLIOTT,

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Petitioner,

3:09-cv-00265-LRH-RAM

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vs.

ORDER

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J. BENEDETTI, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s motion (#31)
following upon the prior order (#30) holding, inter alia, that certain claims were not exhausted.

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Petitioner ultimately seeks therein the dismissal of the unexhausted claims. The Court’s prior

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order, in pertinent part, gave petitioner thirty days within which to move either for dismissal without

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prejudice of the entire petition, for partial dismissal only of the unexhausted claims, “and/or for other

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appropriate relief.” Petitioner queries “what other relief he could seek,” and he posits that he “is given

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no choice but to” dismiss the unexhausted claims. The law is clearly established that it is not the

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Court’s role to advise petitioner as to potential options in this context. The prior order referred to “other

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appropriate relief” in order to not restrict the range of relief that petitioner potentially might request

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under the controlling law. The Court has neither restricted nor affirmatively misled petitioner as to the

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relief that he might request. It again is not the Court’s role to advise petitioner in this regard. If he

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believes that he “has no choice” but to move for dismissal of the unexhausted claims, that subjective

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belief is not the result of advice from this Court or restrictions imposed by this Court.

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The Court accordingly will grant the motion to the extent that it seeks dismissal of the
unexhausted claims.

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To the extent that petitioner requests leave to file, inter alia, future pleadings and evidence, Rule

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5 of the Rules Governing Section 2254 Cases allows petitioner to file a reply to an answer if one is filed,

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and he may file an opposition to any motion to dismiss filed. No order from the Court is necessary to

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make appropriate filings in this regard. Any amendments to the pleadings are governed by Rule 15 of

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the Federal Rules of Civil Procedure.

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The Court’s prior order denying petitioner’s motion for appointment of counsel stands.

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IT THEREFORE IS ORDERED that petitioner's motion (#31) is GRANTED solely to the extent

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that Grounds 5, 8 and 9 are DISMISSED without prejudice.

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IT FURTHER IS ORDERED that respondents shall file a response to the remaining grounds

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in the petition – as described in the prior order (#30) and pursuant to paragraphs (2) and (3) on pages

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2-3 of the scheduling order (#11) – within forty-five (45) days of entry of this order.

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IT FURTHER IS ORDERED that petitioner shall have forty-five (45) days from service of the

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response within which to mail for filing either an opposition to a motion to dismiss or a reply to an

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answer. This deadline shall override any shorter deadline in any later form order issued pursuant to the

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Klingele decision.

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DATED this 12th day of May, 2011.

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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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