Gonzalez v. Benedetti et al

Filing 20

ORDER. IT IS ORDERED that Rs' 9 motion to dismiss is DENIED. FURTH ORD that Rs shall have 45 days from the date of entry of this order to file and serve an answer. P shall have 45 days from the date on which the answer is served to file a reply. Signed by Judge Howard D. McKibben on 11/2/2011. (Copies have been distributed pursuant to the NEF - PM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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GABRIEL GONZALEZ,
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Petitioner,

Case No. 3:10-CV-00695-HDM-(VPC)

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ORDER

vs.
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JIM BENEDETTI, et al.,
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Respondents.
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Before the court are the petition for a writ of habeas corpus
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pursuant to 28 U.S.C. § 2254 (#7), respondents’ motion to dismiss
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(#9), petitioner’s opposition (#18), and respondents’ reply (#19).
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For the reasons stated below, the court denies the motion (#7).
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Respondents move to dismiss ground 1, a claim of innocence,
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because such a claim does not “provide an independent basis for
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federal habeas relief.”

Motion, p. 2 (#9).

Actually, the Supreme

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Court of the United States has not yet determined whether a free23
standing claim of actual innocence exists in federal habeas corpus:
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As a fallback, Osborne also obliquely relies on an asserted
federal constitutional right to be released upon proof of
“actual innocence.” Whether such a federal right exists is an
open question. We have struggled with it over the years, in
some cases assuming, arguendo, that it exists while also
noting the difficult questions such a right would pose and the
high standard any claimant would have to meet.

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District Attorney's Office for Third Judicial Dist. v. Osborne, 129

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S. Ct. 2308, 2321 (2009) (citing House v. Bell, 547 U.S. 518, 554-

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55 (2006); Herrera v. Collins, 506 U.S. 390, 398-417 (1993)).

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The court cannot dismiss ground 1.

Instead, it must find

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whether the state-court decision on this ground is contrary to, or

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an unreasonable application of, clearly established federal law as

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determined by the Supreme Court of the United States.

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U.S.C. § 2254(d)(1).

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state courts, and they never ruled upon it, then the court would

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If petitioner presented the ground to the

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review the ground de novo.

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(2009).

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the court requires an answer.

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See Cone v. Bell, 129 S. Ct. 1769, 1784

These questions go to the merits of ground 1, for which

IT IS THEREFORE ORDERED that respondents’ motion to dismiss
(#9) is DENIED.
IT IS FURTHER ORDERED that respondents shall have forty-five

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(45) days from the date of entry of this order to file and serve an

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answer, which shall comply with Rule 5 of the Rules Governing

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Section 2254 Cases in the United States District Courts.

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Petitioner shall have forty-five (45) days from the date on which

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the answer is served to file a reply.

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DATED: November 2, 2011.

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______________________________________
HOWARD D. MCKIBBEN
United States District Judge

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