Gill v. Baca et al

Filing 64

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KEVIN ROHN GILL,

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Case No. 3:14-cv-00628-MMD-WGC
Petitioner,

ORDER

v.
ISIDRO BACA, et al.,
Respondents.

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The Court found that petitioner had not exhausted his state-court remedies for

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some of his grounds for relief. Petitioner filed a motion to stay (ECF No. 58). His only

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argument in support of his motion is that he was unaware that not all of his grounds had

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been presented to the state courts, and that state post-conviction counsel told him that

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the case had run its course and that there was nothing else for counsel to do.

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The Court agrees with respondents’ arguments in their opposition (ECF No. 60).

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“[U]nspecific, unsupported excuses for failing to exhaust—such as unjustified

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ignorance—[do] not satisfy the good cause requirement.” Blake v. Baker, 745 F.3d 977,

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981 (9th Cir. 2014) (citing Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008)).

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Petitioner gives no explanation how post-conviction counsel had misled him into

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believing, incorrectly, that all his grounds for relief had been presented to the state courts.

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The Court also agrees with respondents that petitioner has not satisfied the other

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two factors for a stay: Potential merit and not being dilatory. See Rhines v. Weber, 544

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U.S. 269, 278 (2005). Petitioner has made no argument on either of these two factors,

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and the Court will not consider them.

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The Court directed petitioner to designate an alternate action in case the Court

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declined to stay the action. Petitioner did not designate an alternate action in the motion

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to stay. However, petitioner subsequently has filed a motion to dismiss (ECF No. 63). He

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states that he wants to exhaust his grounds in the state district court. Petitioner asks that

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the dismissal be without prejudice. Technically, such a dismissal would be without

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prejudice. However, the Court makes no promises that any habeas corpus petition filed

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in this Court after petitioner exhausts his state-court remedies would be timely. As always,

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petitioner remains solely responsible for filing a petition within the one-year limit of 28

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U.S.C. § 2244(d)(1).

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Reasonable jurists would not find the Court’s determinations to be debatable or
wrong, and the Court will not issue a certificate of appealability.

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It is therefore ordered that petitioner’s motion to stay (ECF No. 58) is denied.

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It is further ordered that petitioner’s motion to dismiss (ECF No. 63) is granted.

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This action is dismissed voluntarily without prejudice. The Clerk of the Court will enter

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judgment accordingly and close this action.

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It is further ordered that a certificate of appealability will not issue.

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DATED THIS 7th day of March 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE