Rodney v. Baker et al

Filing 44

ORDER directing Petitioner within 20 days to file a Notice of Abandonment of Unexhausted Claims or the ECF No. 33 Amended Petition will be dismissed; if claims are abandoned within time allowed, giving Respondents 30 days from filing date of the notice to respond to amended petition and giving Petitioner 20 days to reply; denying as moot Respondents' ECF No. 43 Motion for Extension of Time. Signed by Judge Robert C. Jones on 6/7/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KYLE J. RODNEY,
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Petitioner,
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vs.
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RENEE BAKER, et al.,
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Respondents.
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____________________________________/

3:13-cv-00323-RCJ-VPC
ORDER

This is a habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254. On March 4,

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2016, this court entered an order deciding respondents’ motion to dismiss (ECF No. 34) in which it

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found that several of petitioner’s claims are unexhausted. ECF No. 41. Having determined that

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petitioner is not entitled to a stay under Rhines v. Weber, 544 U.S. 269 (2005), the court gave

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petitioner twenty days within which to file a notice of abandonment of unexhausted claims indicating

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that unexhausted are to be deleted from his amended petition (ECF No. 33). The court also advised

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petitioner that failure to abandon his unexhausted claims would result in a dismissal of his petition

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pursuant to Rose v. Lundy, 455 U.S. 509 (1982).

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On March 16, 2016, petitioner filed a response to the court’s March 4 order in which he

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expresses uncertainty regarding his procedural options. ECF No. 42. In particular, petitioner

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indicates that he reads Lundy as authorizing a procedure wherein the court dismisses his current

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petition without prejudice, then permits him to return to this court once his claims have been

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exhausted. Of course, this reading overlooks the fact that “AEDPA in 1996 dramatically altered the

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landscape for federal habeas corpus petitions, by . . . preserv[ing] Lundy's total exhaustion

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requirement,” but “also impos[ing] a 1-year statute of limitations on the filing of federal petitions.”

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Rhines, 544 U.S. at 274. Thus, if the court were to dismiss the habeas petition in this case, a habeas

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petition filed by petitioner at a future date would be time-barred.

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Stay and abeyance under Rhines is the procedure that allows a habeas petitioner to address

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the dilemma imposed by the intersection of the total exhaustion requirement and the 1-year statute of

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limitations. However, for the reasons set forth in this court’s March 4 order, petitioner is not entitled

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to a stay under Rhines. Moreover, the court also notes that, at this point, petitioner would almost

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certainly be procedurally barred from presenting his unexhausted claims in state court. Accordingly,

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even if it stayed this action to permit state court exhaustion of unexhausted claims, this court would

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nonetheless be barred, by the doctrine of procedural default, from considering those claims on the

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merits. See Coleman v. Thompson, 501 U.S. 722, 730–31 (1991).

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Having provided the foregoing clarification, the court shall allow petition one more

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opportunity to abandon his unexhausted claims. Failure to do so will result in the dismissal of his

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petition.

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IT IS THEREFORE ORDERED that petitioner shall have twenty (20) days from the date

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this order is entered within which to file a Notice of Abandonment of Unexhausted Claims, indicating

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that Grounds 7, 8, 11, 12, 13 and 14 are to be deleted from his amended petition (ECF No. 33).

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IT IS FURTHER ORDERED that, if petitioner does not abandon his unexhausted claims

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within the time allowed, the amended petition (ECF No. 33) shall be dismissed under Rose v. Lundy,

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455 U.S. 509 (1982).

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IT IS FURTHER ORDERED that, if petitioner abandons his unexhausted claims within the
time allowed, respondents shall have thirty (30) days from the date the Notice of Abandonment is
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filed within which to file an Answer to the remaining claim(s) in the amended petition (ECF No. 33).

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Petitioner shall have twenty (20) days following service of respondents' answer in which to file a

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reply.

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IT IS FURTHER ORDERED that respondents’ motion for extension of time (ECF No. 43)
is DENIED as moot.
DATED: this ______ day of May, 2016.
Dated This 7th day of June, 2016.

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UNITED STATES DISTRICT JUDGE
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