Tiffany v. LeGrand et al

Filing 53

ORDER that petitioners motion for a stay and abeyance ECF No. 42 is denied; petitioners fourth motion for the appointment of counsel ECF No. 45 is denied; motion for reconsideration ECF No. 48 of the Courts order of 02/17/2015 i s denied; the unexhausted grounds specified in the Courts order of 02/17/2015, at page 9, are dismissed without prejudice; respondents must file and serve an answer to the remaining grounds of the petition by 09/21/2017; petitioner must file and serve a reply to the answer, within 30 days after being served with the answer. Signed by Judge Miranda M. Du on 08/22/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

***

8
9
10
11

DAVID TIFFANY,

Case No. 3:13-cv-00682-MMD-VPC
Petitioner,

ORDER

v.
ROBERT LeGRAND, et al.,

12

Defendants.

13
14

This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §

15

2254, by a Nevada state prisoner. Before the Court are petitioner’s motion for a stay (ECF

16

No. 42), motion for the appointment of counsel (ECF No. 45), and motion for

17

reconsideration (ECF No. 48).

18

On February 17, 2015, this Court entered an order granting respondents’ motion

19

to dismiss and finding several grounds of the petition unexhausted. (ECF No. 29). The

20

Court gave petitioner the option of abandoning his unexhausted claims and proceeding

21

on his exhausted claims, or in the alternative, to seek a stay under Rhines v. Weber, 544

22

U.S. 269 (2005). Petitioner was directed to inform the Court of his choice among the

23

options given within thirty days. (ECF No. 29, at 8-10).

24

Regarding petitioner’s motion for a stay, in limited circumstances, the Court can

25

order a stay and abeyance of a mixed petition to allow petitioner’s return to state court to

26

exhaust his claims. Rhines v. Weber, 544 U.S. 269, 277 (2005). A stay is appropriate if

27

petitioner shows (1) good cause for his failure to exhaust claims in state court, (2) the

28

unexhausted claims are meritorious, and (3) the petitioner has not engaged in

1

intentionally dilatory litigation tactics. Id. at 277-78. Petitioner has not shown good cause

2

for his failure to exhaust his claims. Petitioner’s motion for a stay is denied. Petitioner’s

3

unexhausted claims will be dismissed.

4

Petitioner has filed a fourth motion for the appointment of counsel. (ECF No. 45).

5

Petitioner has previously filed motions for the appointment of counsel (ECF Nos. 5, 8, 38).

6

The Court has denied petitioner’s prior motions for the appointment of counsel. (ECF

7

No. 29, at 3; ECF No. 41, at 3). Petitioner has no constitutional right to appointed counsel

8

in a federal habeas corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);

9

Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir. 1993). The decision to appoint counsel is

10

within the Court’s discretion. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert.

11

denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert.

12

denied, 469 U.S. 838 (1984). The Court previously ruled that the petition in this action is

13

sufficiently clear in presenting the issues that petitioner wishes to bring and that the issues

14

in this case are not complex. Nothing in petitioner’s current motion causes this Court to

15

deviate from its prior ruling. Petitioner’s fourth motion seeking the appointment of counsel

16

is denied.

17

Petitioner has filed a motion for reconsideration of the Court’s order of February

18

17, 2015. (ECF No. 48). In challenging an interlocutory order, a district court may rescind,

19

reconsider, or amend a previous order pursuant to its inherent power to modify

20

interlocutory orders before the entry of final judgment. City of Los Angeles, Harbor Div. v.

21

Santa Monica Baykeeper, 254 F.3d 882, 886-87 (9th Cir. 1987). Petitioner argues that he

22

presented all claims to the state district court in his post-conviction petition. Petitioner

23

asserts that he did not need to raise those issues to the Nevada Supreme Court on appeal

24

because the record on appeal contained those claims. In order to be “fairly presented,”

25

claims must be presented to the court in a procedurally proper manner. See Castille v.

26

Peoples, 489 U.S. 346, 351 (1989) (holding that exhaustion cannot be achieved by

27

procedurally deficient or improper means). “Fair presentation” of an appellant’s claims

28

must be accomplished within the four corners of the appellant’s opening brief, and
2

1

appellate courts are not obligated to sift through the lower-court record to find potential

2

claims. See Baldwin v. Reese, 541 U.S. 27 (2004); see also Castillo v. McFadden, 399

3

F.3d 993, 1000 (9th Cir. 2005). In his motion, petitioner acknowledges that his claims were

4

not presented to the Nevada Supreme Court in a procedurally proper manner. (ECF No.

5

48, at p. 4). Petitioner has not demonstrated any valid basis to alter this Court’s order of

6

February 17, 2015, thus his motion for the same is denied.

7
8
9
10
11
12
13
14

It is therefore ordered that petitioner’s motion for a stay and abeyance (ECF No.
42) is denied.
It is further ordered that petitioner’s fourth motion for the appointment of counsel
(ECF No. 45) is denied.
It is further ordered that motion for reconsideration (ECF No. 48) of the Court’s
order of February 17, 2015, is denied.
It is further ordered that the unexhausted grounds specified in the Court’s order of
February 17, 2015, at page 9, are dismissed without prejudice.

15

It is further ordered that respondents must file and serve an answer to the

16

remaining grounds of the petition within thirty (30) days from the entry of this order. The

17

answer must include substantive arguments on the merits as to each remaining ground

18

of the petition.

19
20
21

It is further ordered that petitioner must file and serve a reply to the answer, within
thirty (30) days after being served with the answer.
DATED THIS 22nd day of August 2017.

22
23

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

24
25
26
27
28
3