Volpicelli v. LeGrand et al

Filing 25

ORDER - Petitioner's motion for stay (ECF No. 22 ) is granted. This action is stayed pending exhaustion of petitioners unexhausted claims. The grant of a stay is conditioned upon petitioner returning to federal court with a motion to reopen wi thin 45 days of issuance of the remittitur. Clerk shall administratively close this action until such time as the Court grants a motion to reopen the matter. Respondents' motion for extension of time (ECF No. 23 ) is granted nunc pro tunc as of December 27, 2016. Signed by Judge Miranda M. Du on 4/3/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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FERRILL J. VOLPICELLI,

Case No. 3:14-cv-00579-MMD-VPC
Petitioner,

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ORDER

v.

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ROBERT LeGRAND, et al.,
Respondents.

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This is a habeas corpus action under 28 U.S.C. § 2254. On November 17, 2016,

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this Court entered an order directing petitioner to show cause why the claims in his petition

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are not barred by either the doctrine of res judicata or the doctrine of procedural default.

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(ECF No. 20.) In response, petitioner filed a motion for a stay. (ECF No. 22.)

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In support of his motion, petitioner points out that he currently has an appeal

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pending with the Nevada Supreme Court in relation to the claims in his federal petition.

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Respondents concede that “the interests of judicial economy would be best served by

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staying this matter until the Nevada Supreme Court has an opportunity to resolve

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[petitioner’s] pending appeal.” (ECF No. 24 at 2.) This Court agrees and will grant the

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stay.

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It is therefore ordered that petitioner's motion for stay (ECF No. 22) is granted. This
action is stayed pending exhaustion of petitioner’s unexhausted claims.

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It is further ordered that the grant of a stay is conditioned upon petitioner returning

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to federal court with a motion to reopen within forty-five (45) days of issuance of the

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remittitur by the Supreme Court of Nevada at the conclusion of the state court

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proceedings.

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It is further ordered that the Clerk administratively close this action until such time
as the Court grants a motion to reopen the matter.
It is further ordered that respondents motion for extension of time (ECF No. 23) is

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granted nunc pro tunc as of December 27, 2016.

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DATED THIS 3rd day of April 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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