Gill v. Baca et al
ORDER denying ECF No. 58 Motion to Stay Case; granting ECF No. 63 Petitioner's Motion to Dismiss; action is dismissed voluntarily without prejudice; Clerk directed to enter judgment and close action; a certificate of appealability will not issue. Signed by Judge Miranda M. Du on 3/7/2018. (Copies have been distributed pursuant to the NEF - KW)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
KEVIN ROHN GILL,
Case No. 3:14-cv-00628-MMD-WGC
ISIDRO BACA, et al.,
The Court found that petitioner had not exhausted his state-court remedies for
some of his grounds for relief. Petitioner filed a motion to stay (ECF No. 58). His only
argument in support of his motion is that he was unaware that not all of his grounds had
been presented to the state courts, and that state post-conviction counsel told him that
the case had run its course and that there was nothing else for counsel to do.
The Court agrees with respondents’ arguments in their opposition (ECF No. 60).
“[U]nspecific, unsupported excuses for failing to exhaust—such as unjustified
ignorance—[do] not satisfy the good cause requirement.” Blake v. Baker, 745 F.3d 977,
981 (9th Cir. 2014) (citing Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008)).
Petitioner gives no explanation how post-conviction counsel had misled him into
believing, incorrectly, that all his grounds for relief had been presented to the state courts.
The Court also agrees with respondents that petitioner has not satisfied the other
two factors for a stay: Potential merit and not being dilatory. See Rhines v. Weber, 544
U.S. 269, 278 (2005). Petitioner has made no argument on either of these two factors,
and the Court will not consider them.
The Court directed petitioner to designate an alternate action in case the Court
declined to stay the action. Petitioner did not designate an alternate action in the motion
to stay. However, petitioner subsequently has filed a motion to dismiss (ECF No. 63). He
states that he wants to exhaust his grounds in the state district court. Petitioner asks that
the dismissal be without prejudice. Technically, such a dismissal would be without
prejudice. However, the Court makes no promises that any habeas corpus petition filed
in this Court after petitioner exhausts his state-court remedies would be timely. As always,
petitioner remains solely responsible for filing a petition within the one-year limit of 28
U.S.C. § 2244(d)(1).
Reasonable jurists would not find the Court’s determinations to be debatable or
wrong, and the Court will not issue a certificate of appealability.
It is therefore ordered that petitioner’s motion to stay (ECF No. 58) is denied.
It is further ordered that petitioner’s motion to dismiss (ECF No. 63) is granted.
This action is dismissed voluntarily without prejudice. The Clerk of the Court will enter
judgment accordingly and close this action.
It is further ordered that a certificate of appealability will not issue.
DATED THIS 7th day of March 2018.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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