Byford v. Nevada Attorney General et al

Filing 84

ORDER denying ECF No. 81 Petitioner's Motion to Vacate Stay and Reopen Habeas Corpus Proceeding; pursuant to Federal Rule of Civil Procedure 25(d), the Clerk of the Court shall substitute William Gittere for Timothy Filson, on the docket for this case, as the respondent warden. Signed by Judge James C. Mahan on 9/10/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT ROYCE BYFORD,

Case No. 3:11-cv-00112-JCM-WGC

Petitioner,
v.

ORDER DENYING MOTION TO
VACATE STAY AND REOPEN HABEAS
CORPUS PROCEEDING (ECF NO. 81)

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WILLIAM GITTERE, et al.,
Respondents.

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In this capital habeas corpus action, on February 1, 2013, the Court granted a

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motion filed by the petitioner, Robert Royce Byford, requesting that the action be stayed

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pending his further state-court litigation. See Order entered February 1, 2013 (ECF No.

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53). Then, on March 13, 2017, the Court granted Byford’s motion to temporarily lift the

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stay to allow him to add to his petition in this action a new claim, one based on Hurst v.

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Florida, 136 S.Ct. 616 (2016). See Order entered March 13, 2017 (ECF No. 73). In all

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other respects the stay remained in place following the March 13, 2017, order. See id.

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On August 13, 2019, Byford filed a motion to lift the stay (ECF No. 81). In that
motion, Byford states:
Mr. Byford recognizes that his state court proceedings are not
formally completed, as his appeal from the state district court’s denial of
his successive petition remains pending in the Nevada Supreme Court.
See ECF No. 79 (6-14-19 Status Report). However, given that the denial
of that appeal appears to be a foregone conclusion in light of the Nevada
Supreme Court’s decision addressing the Hurst issue in Castillo v. State,
442 P.3d 558 (Nev. 2019), and the likelihood that Mr. Byford’s claims
presented in his successive state court petition will be exhausted by the
time this Court issues any ruling addressing his claims procedurally or on
their merits, Mr. Byford desires to lift the current stay and pursue this
Court’s federal habeas review of the merits of his constitutional claims.

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Motion to Vacate Stay and Reopen Habeas Corpus Proceeding (ECF No. 81),

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p. 3. Respondents filed an opposition to the motion to lift the stay (ECF No. 82),

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arguing that lifting the stay now would be premature and would defeat the
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purpose of the stay, in that this case would then proceed with an unexhausted

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claim in Byford’s petition. Response to Motion to Vacate Stay and Reopen

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Habeas Corpus Proceeding (ECF No. 82), p. 1. Respondents argue, further, that

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proceeding with this case before the state court rules on the Hurst claim would

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be unfair to Respondents “because the nature of the state court decision will

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undoubtedly affect how Respondents litigate Byford’s Hurst claim.” Id. at 1.

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Byford replied on September 4, 2019 (ECF No. 83).

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Byford’s request to lift the stay of this action is premature. The Court will

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not lift the stay based upon Byford’s prediction how the state court will rule on his

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Hurst claim. And, the Court will not, under the circumstances in this case, require

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the Respondents to proceed upon a petition including an unexhausted claim. The

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point of the stay was for Byford to fully exhaust all his claims in state court before

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proceeding in this federal habeas action. See Order entered February 1, 2013

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(ECF No. 53) (“Byford must exhaust all of his unexhausted claims in state court

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during the stay imposed pursuant to this order.”). In the interests of fairness and

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judicial economy, the Court will deny Byford’s motion, and the stay of this action

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will remain in effect until the state-court proceeding is completed.

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IT IS THEREFORE ORDERED that Petitioner’s Motion to Vacate Stay
and Reopen Habeas Corpus Proceeding (ECF No. 81) is DENIED.
IT IS FURTHER ORDERED that, pursuant to Federal Rule of Civil Procedure

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25(d), the Clerk of the Court shall substitute William Gittere for Timothy Filson, on the

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docket for this case, as the respondent warden.

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September 10, 2019.
DATED THIS ___ day of ______________________, 2019.

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JAMES C. MAHAN,
UNITED STATES DISTRICT JUDGE

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