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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 KYLE J. RODNEY, 11 12 13 14 15 16 ) ) Petitioner, ) ) vs. ) ) RENEE BAKER, et al., ) ) Respondents. ) ____________________________________/ 3:13-cv-00323-RCJ-VPC ORDER This is a habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254. On March 4, 17 2016, this court entered an order deciding respondents’ motion to dismiss (ECF No. 34) in which it 18 found that several of petitioner’s claims are unexhausted. ECF No. 41. Having determined that 19 petitioner is not entitled to a stay under Rhines v. Weber, 544 U.S. 269 (2005), the court gave 20 petitioner twenty days within which to file a notice of abandonment of unexhausted claims indicating 21 that unexhausted are to be deleted from his amended petition (ECF No. 33). The court also advised 22 petitioner that failure to abandon his unexhausted claims would result in a dismissal of his petition 23 pursuant to Rose v. Lundy, 455 U.S. 509 (1982). 24 On March 16, 2016, petitioner filed a response to the court’s March 4 order in which he 25 expresses uncertainty regarding his procedural options. ECF No. 42. In particular, petitioner 26 indicates that he reads Lundy as authorizing a procedure wherein the court dismisses his current 1 petition without prejudice, then permits him to return to this court once his claims have been 2 exhausted. Of course, this reading overlooks the fact that “AEDPA in 1996 dramatically altered the 3 landscape for federal habeas corpus petitions, by . . . preserv[ing] Lundy's total exhaustion 4 requirement,” but “also impos[ing] a 1-year statute of limitations on the filing of federal petitions.” 5 Rhines, 544 U.S. at 274. Thus, if the court were to dismiss the habeas petition in this case, a habeas 6 petition filed by petitioner at a future date would be time-barred. 7 Stay and abeyance under Rhines is the procedure that allows a habeas petitioner to address 8 the dilemma imposed by the intersection of the total exhaustion requirement and the 1-year statute of 9 limitations. However, for the reasons set forth in this court’s March 4 order, petitioner is not entitled 10 to a stay under Rhines. Moreover, the court also notes that, at this point, petitioner would almost 11 certainly be procedurally barred from presenting his unexhausted claims in state court. Accordingly, 12 even if it stayed this action to permit state court exhaustion of unexhausted claims, this court would 13 nonetheless be barred, by the doctrine of procedural default, from considering those claims on the 14 merits. See Coleman v. Thompson, 501 U.S. 722, 730–31 (1991). 15 Having provided the foregoing clarification, the court shall allow petition one more 16 opportunity to abandon his unexhausted claims. Failure to do so will result in the dismissal of his 17 petition. 18 IT IS THEREFORE ORDERED that petitioner shall have twenty (20) days from the date 19 this order is entered within which to file a Notice of Abandonment of Unexhausted Claims, indicating 20 that Grounds 7, 8, 11, 12, 13 and 14 are to be deleted from his amended petition (ECF No. 33). 21 IT IS FURTHER ORDERED that, if petitioner does not abandon his unexhausted claims 22 within the time allowed, the amended petition (ECF No. 33) shall be dismissed under Rose v. Lundy, 23 455 U.S. 509 (1982). 24 25 26 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 2 1 filed within which to file an Answer to the remaining claim(s) in the amended petition (ECF No. 33). 2 Petitioner shall have twenty (20) days following service of respondents' answer in which to file a 3 reply. 4 5 6 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. 7 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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