Yaag v. LeGrand et al

Filing 92

ORDER denying ECF No. 83 Motion for Records; denying ECF NO. 84 Motion for Dismissal of Counsel; denying ECF No. 85 Motion to Extend Time; denying ECF Nos. 86 and 88 Motions to Compel Previous Counsel to Provide Complete Records. Signed by Chief Judge Miranda M. Du on 1/13/2022. (Copies have been distributed pursuant to the NEF - HKL)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DONALD STEPHEN YAAG,
v.

Case No. 3:14-cv-00295-MMD-WGC
Petitioner,

ORDER

WARDEN RENEE BAKER, et al.,
Respondents.

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Before the Court are Petitioner Donald Stephen Yaag’s Motion for Records (ECF

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No. 83), Motion for Dismissal of Counsel (ECF No. 84), Motion to Extend Time (ECF No.

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85), and Motions to Compel Previous Counsel to Provide Complete Records (ECF Nos.

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86, 88) in this closed habeas matter.

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Yaag initiated this case on June 6, 2014, by filing a petition for writ of habeas

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corpus under 28 U.S.C. § 2254, challenging a 2009 conviction and sentence imposed by

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the Eighth Judicial District Court for Clark County (“state court”). (ECF No. 1-1.) Yaag filed

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a counseled second amended petition (ECF No. 48) in August 2017, and Respondents

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moved to dismiss the second amended petition as untimely, unexhausted, procedurally

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defaulted, or non-cognizable. (ECF No. 55.) Yaag responded and also requested a stay

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and abeyance pending the exhaustion of remedies in state court. (ECF Nos. 60, 61.) The

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Court granted his request and denied the dismissal motion without prejudice. (ECF

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No. 66.)

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In October 2017, Yaag filed a second state petition for writ of habeas corpus. The

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second state petition was denied as time barred and successive. (ECF No. 68-8.) The

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state court found that Yaag’s actual innocence claim failed to establish good cause to

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overcome Nevada’s procedural bars. (Id. at 8.) In October 2019, the Court granted Yaag’s

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unopposed request to reopen this case. (ECF No. 67.) Respondents filed a motion to

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dismiss the second amended petition, and the Court dismissed the petition on October 2,

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2020, finding Claims A, B(2), and C untimely and Claims B(1), B(2), C, and D procedurally

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defaulted. (ECF No. 78.) The Clerk of Court entered judgment. (ECF No. 79.)

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Yaag appealed the order denying the petition and judgment entered to the United

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States Court of Appeals for the Ninth Circuit. (ECF No. 80.) The Ninth Circuit denied

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Yaag’s request for a certificate of appealability. (ECF No. 82.) The Ninth Circuit granted

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Yaag’s counsel’s request to be relieved as counsel of record and Yaag proceeded pro se

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before the Ninth Circuit. (ECF No. 87.) The Ninth Circuit denied Yaag’s motion for

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reconsideration and motion for reconsideration en banc. (ECF No. 89.)

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Yaag requests dismissal of counsel because counsel had “no intentions of filing

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for rehearing, rehearing en banc, or a petition for certiorari.” (ECF No. 84 at 1-2.) Yaag

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further requests that counsel file for an extension of time to file for rehearing and rehearing

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en banc before the Ninth Circuit. (ECF No. 85.) The Ninth Circuit granted counsel’s

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withdrawal and granted Yaag’s request to extend time to file a motion for reconsideration.

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(ECF No. 87.) Accordingly, Yaag’s motions are denied as moot.

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Yaag filed multiple motions for his records from the Federal Public Defender’s

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office. (ECF Nos. 83, 86, 88.) Yaag also attached a signed authorization for release of

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records on a form from the Federal Public Defender’s office, which provides that Yaag

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“understand[s] that the Office of the Federal Public Defender will release [his] entire,

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original legal file to [him],” and that he “further understand[s] the Office of the Federal

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Public Defender will not maintain a copy of my legal file.” (ECF No. 88 at 4.) Accordingly,

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it appears that Yaag’s motions for records are moot as he already completed an

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authorization for release of records with the Office of the Federal Public Defender. The

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Court denies his motions as moot.

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It is therefore ordered that Petitioner Donald Stephen Yaag’s Motion for Records

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(ECF No. 83) and Motions to Compel Previous Counsel to Provide Complete Records

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(ECF Nos. 86, 88) are denied.
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It is further ordered that Yaag’s Motion for Dismissal of Counsel (ECF No. 84) is
denied.

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It is further ordered that Yaag’s Motion to Extend Time (ECF No. 85) is denied.

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DATED THIS 13th Day of January 2022.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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