Boney v. Smith et al

Filing 34

ORDER that this action is dismissed without prejudice; Clerk directed to enter judgment. Signed by Judge Miranda M. Du on 2/1/2018. (Copies have been distributed pursuant to the NEF - LH)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10

***

11

WILLIAM BONEY,

12
13
14

Case No. 3:15-cv-00193-MMD-WGC
Petitioner,

v.

ORDER

GREGORY SMITH, et al.,
Respondents.

15
16

This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes

17

before the Court on petitioner’s election to return to state court to exhaust his unexhausted

18

claims. (ECF No. 33.)

19

On February 21, 2017, the Court determined that this is a mixed petition containing

20

both exhausted and unexhausted claims. As the Court cannot proceed on a mixed

21

petition, it directed petitioner to select one of three options: (1) submit a sworn declaration

22

voluntarily abandoning the unexhausted claims so as to proceed on only the exhausted

23

claims; (2) return to state court to exhaust the unexhausted claims, in which case the

24

petition would be denied without prejudice; or (3) file a motion to stay and abey the

25

exhausted claims so petitioner could return to state court to exhaust his unexhausted

26

claims.

27

On April 27, 2017, petitioner filed a motion to stay and abey. On December 15,

28

2017, the Court denied petitioner’s motion and directed petitioner to submit a sworn

1

declaration advising the Court either (1) that he is voluntarily abandoning his unexhausted

2

claims and will proceed on the exhausted claims only or (2) that he will return to state

3

court to exhaust his unexhausted claims, in which case this federal habeas petition will

4

be denied without prejudice.

5

On January 29, 2018, petitioner filed a sworn declaration advising the Court that

6

he will return to state court to exhaust his unexhausted claims. (ECF No. 33.) It is

7

therefore ordered that the petition in this action is dismissed without prejudice.

8

It is further ordered that the Clerk of the Court shall enter judgment accordingly.

9
10

DATED THIS 1st day of February 2018.

11
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2