Von Tobel v. Benedetti et al

Filing 48

ORDERED that P's # 45 Motion for issuance of stay and abeyance order is GRANTED. FURTHER ORD this action is STAYED pending exhaustion. P shall return to this court with a motion to reopen within 60 days of issuance of remittitur. FURTHER ORD clerk of court shall administratively close this action. Signed by Judge Larry R. Hicks on 4/4/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GERALD E. VONTOBEL,

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Petitioner,

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vs.

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JAMES BENEDETTI, et al.,

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Case No. 3:10-CV-00073-LRH-(VPC)

Respondents.

ORDER

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The court determined that grounds 2, 3, and 6 of the first amended petition (#23) were not

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exhausted. Order (#42). Petitioner has filed a motion for issuance of stay and abeyance order (#45).

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Respondents have not filed a response to the motion. To stay this action, petitioner must show that

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he has “good cause for his failure to exhaust, his unexhausted claims are potentially meritorious,

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and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.”

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Rhines v. Weber, 544 U.S. 269, 278 (2005).

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The court found that ground 2 was unexhausted because petitioner did not allege any facts in

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support of his corresponding state-court petition. The court found that grounds 3 and 6 were

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unexhausted because petitioner did not inform the Nevada Supreme Court on direct appeal that

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these grounds were issues of federal law. Petitioner has demonstrated good cause to excuse the

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failure to exhaust these grounds in state court, and the grounds have potential merit.

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IT IS THEREFORE ORDERED that petitioner’s motion for issuance of stay and abeyance
order (#45) is GRANTED.

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IT IS FURTHER 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 sixty (60)

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days of issuance of the remittitur by the Nevada Supreme Court at the conclusion of the state court

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proceedings. Further, petitioner or respondents otherwise may move to reopen the matter and seek

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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 matter.
DATED this 4th day of April, 2012.

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_________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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