Allen v. Cox et al
ORDER denying ECF No. 91 Motion to Dismiss; petitioner shall have (30) days to either: (1) inform court in a sworn declaration that he wishes to dismiss the petition without prejudice; OR (2) file a motion for a stay and abeyance; if petitioner fails to respond to the order, this case may be dismissed. Signed by Judge Robert C. Jones on 11/20/2017. (Copies have been distributed pursuant to the NEF - KW)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
GENE A. ALLEN,
Case No. 3:14-cv-00510-RCJ-VPC
JAMES G. COX, et al.,
This is a habeas matter under 28 U.S.C. § 2254 in which petitioner Gene A.
Allen, represented by counsel, alleges violations of his due process rights in his parole
hearings (ECF No. 44). On March 8, 2017, this court granted respondents’ motion to
dismiss the petition as wholly unexhausted (ECF No. 76).
The court directed that petitioner had thirty (30) days to either: (1) inform this
court in a sworn declaration that he wishes to dismiss this petition without prejudice in
order to return to state court to exhaust his unexhausted claims; OR (2) file a motion for
a stay and abeyance, asking this court to hold his federal petition in abeyance while he
returns to state court to exhaust his unexhausted claims.
Instead, Allen filed a notice of appeal with the Ninth Circuit Court of Appeals
(ECF No. 89). The court of appeals dismissed the appeal for lack of jurisdiction on
August 15, 2017 (ECF No. 88).
Allen has now filed a pro se motion that he has styled as a motion to dismiss
counsel (ECF No. 91). He makes the bare assertion that there “appears to be an
unresolved conflict of interest,” yet—as this court has stated in earlier orders—he has
pointed to no conflict with his current counsel whatsoever. Therefore, the motion to
dismiss counsel shall be denied. Now that Allen’s appeal has been dismissed, the court
shall grant Allen—through is counsel—thirty (30) days to either voluntarily dismiss this
unexhausted petition or move for a stay and abeyance.
IT IS THEREFORE ORDERED that petitioner’s motion to dismiss counsel (ECF
No. 91) is DENIED.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either:
(1) inform this court in a sworn declaration that he wishes to dismiss this petition without
prejudice in order to return to state court to exhaust his unexhausted claims; OR (2) file
a motion for a stay and abeyance, asking this court to hold his federal petition in
abeyance while he returns to state court to exhaust his unexhausted claims. If
petitioner chooses to file a motion for a stay and abeyance, or seek other appropriate
relief, respondents may respond to such motion as provided in Local Rule 7-2.
IT IS FURTHER ORDERED that if petitioner fails to respond to this order within
the time permitted, this case may be dismissed.
20th day of 2017.
DATED: 6 NovemberNovember, 2017.
ROBERT C. JONES
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?