Person v. Neven et al

Filing 34

ORDER. IT IS HEREBY ORDERED that petitioner's request to file an amended habeas petition that contains only exhausted claims is GRANTED. FURTHER ORDERED, the amended habeas petition SHALL be filed and served on respondents w/in thirty (30) days from the filing date of this order. FURTHER ORDERED, respondents SHALL FILE AN ANSWER w/in forty-five (45) days from the date of being served with the amended petition. No further motions to dismiss will be entertained . FURTHER ORDERED, petitioner SHALL FILE HIS REPLY to the answer w/in thirty (30) days of being served with it. FURTHER ORDERED, hard copies of all filings SHALL BE SUBMITTED to the staff attorneys in the Reno Division. Signed by Judge Edward C. Reed, Jr on 3/14/2012. (Copies have been distributed pursuant to the NEF - KO)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MICHAEL ROBERT PERSON,
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Petitioner,
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vs.
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DWIGHT NEVEN, et al.,
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Respondents.
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____________________________________/

3:10-cv-00480-ECR-WGC
ORDER

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This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a
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Nevada state prisoner who is represented by counsel.
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I. Background
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By order filed July 21, 2011, this Court granted in part and denied in part respondents’
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motion to dismiss the petition. (ECF No. 24). Specifically, the Court found that Grounds One and
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Two of the petition are unexhausted. (Id.). The Court further found that two sub-claims of Ground
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Three are exhausted, but the remainder of Ground Three is unexhausted. (Id.). The Court directed
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petitioner to inform the Court, within thirty days, whether he wishes to abandon the unexhausted
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claims, or whether he wishes to seek a stay and abeyance in order to return to state court to exhaust
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the unexhausted claims. (Id.).
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Through counsel, petitioner filed a “notice of election” in response to the Court’s July 21,

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2011 order. (ECF No. 30). Without leave of Court, respondents filed a response to petitioner’s

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notice of election. (ECF No. 31). Petitioner then filed a reply to respondents’ response, also without

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leave of Court. (ECF No. 32).

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II. Ground One

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By order filed July 21, 2011, this Court held that the entirety of Ground One was

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unexhausted. The Court ruled that because petitioner made additional arguments that go beyond the

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conflict of interest allegations contained in the opening brief to the Nevada Supreme Court, Ground

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One of the federal petition is unexhausted. (ECF No. 24, at p. 5). The Court further ruled that

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claims raised in petitioner’s brief seeking rehearing to the Nevada Supreme Court were presented by

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a procedurally defective means and therefore, are unexhausted. (ECF No. 24, at pp. 5-6).

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In petitioner’s notice of election, with respect to Ground One, he states:
To the extent that Ground One alleges arguments beyond the
conflict of interest allegations contained in the Opening Brief to the
Nevada Supreme Court and purports to establish an independent basis
for relief, Petitioner abandons Ground 1. Put another way, Petitioner
abandons his exculpatory version of events and failed to pursue
defenses as an independent basis for the granting of habeas relief
pursuant to Hill v. Lockhart, 474 U.S. 52 (1985), and its progeny.
However, Petitioner does not abandon Ground I to the extent
that it alleges that trial counsel acted under an actual conflict of interest
and did not secure a Constitutionally valid waiver of the conflict of
interest, and that the Nevada Supreme Court unreasonably applied the
holding of Cuyler v. Sullian, 446 U.S. 335(1980) to the operative facts
at bar. Based upon pp. 20-27 of the Opening Brief filed in Case No.
53617, filed May 28, 2009, there simply is no question that Petitioner
exhausted that issue. Petitioner does not read the Court as holding to
the contrary. Petitioner desires to adjudicate the issue he in fact
exhausted to the Nevada Supreme Court in Ground I.

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(ECF No. 30, at pp. 1-2). Petitioner’s notice of election is not in compliance with this Court’s order,
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as the Court ruled that the entirety of Ground One was unexhausted. (Id.). However, to the extent
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that petitioner seeks leave to file an amended habeas petition including only exhausted claims, this
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Court will allow it. Fed. R. Civ. P. 15(a) (leave to amend “shall be freely given when justice so

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requires”); see e.g. Roman v. Estelle, 917 F.2d 1505, 1506 (9th Cir. 1990). Petitioner shall abide by

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the deadlines set forth at the conclusion of this order for filing an amended petition.

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III. Ground Two

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In petitioner’s notice of election, as to Ground Two, petitioner states:

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As with Ground I, Petitioner abandons Ground II to the extent that it
raises any Constitutional ground other than that which was alleged at
pp. 27-31 of the Appellant’s Opening Brief filed May 28, 2009, in
Case No. 53617. Petitioner does so, notwithstanding Williams v.
Ryan, 623 F.3d 1258, 1264-65 (9th Cir. 2010) [vacated in part and
remanded], for reasons that will become clear in the ultimate Traverse
to Respondent’s Answer.

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(ECF No. 30, at p. 2). To the extent that petitioner also seeks to amend Ground Two to include only

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exhausted claims, he shall do so when filing the amended petition.

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IV. Ground Three

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In his notice of election, petitioner agrees to abandon the subclaims in Ground III that this

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Court found to be unexhausted. (ECF No. 30, at p. 3). To the extent that petitioner seeks to amend

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Ground Three to include only exhausted claims, he shall do so when filing the amended petition.

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V. Conclusion

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IT IS THEREFORE ORDERED that petitioner’s request to file an amended habeas
petition that contains only exhausted claims is GRANTED.
IT IS FURTHER ORDERED that the amended habeas petition SHALL be filed and served
on respondents within thirty (30) days from the filing date of this order.
IT IS FURTHER ORDERED that respondents SHALL FILE AN ANSWER to the

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amended habeas petition within forty-five (45) days from the date of being served with it. The

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answer shall include substantive arguments on the merits as to each claim in the petition, as well as

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any procedural arguments that may be applicable. No further motions to dismiss will be

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entertained.

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IT IS FURTHER ORDERED that petitioner SHALL FILE HIS REPLY (traverse) to the
answer within thirty (30) days of being served with the answer.
IT IS FURTHER ORDERED that hard copies of all filings, including the amended petition,

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answer, reply, and any exhibits, SHALL BE SUBMITTED, for this case, to the staff attorneys in

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the Reno Division of the Clerk of Court.

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Dated this 14th day of March, 2012.

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UNITED STATES DISTRICT JUDGE
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