Draw v. Baca et al

Filing 34

ORDER granting ECF No. 33 Motion for Enlargementof Time. Petitioner will have until 12/23/2016 to file a notice of abandonment of Claim 6e. Signed by Judge Miranda M. Du on 11/01/2016. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

HUBERT W. DRAW, JR.,

10
11
12
13

Case No. 3:15-cv-00224-MMD-WGC
Petitioner,

ORDER

v.
ISIDRO BACA, et al.,
Respondents.

14
15

In this habeas corpus action, the petitioner, Hubert W. Draw, Jr., is due to make

16

an election regarding an unexhausted claim in his petition — Claim 6e — by November

17

7, 2016. See Order entered September 21, 2016 (ECF No. 32). Draw must either abandon

18

Claim 6e or have his entire action dismissed, nominally "without prejudice," pursuant to

19

Rose v. Lundy, 455 U.S. 509 (1982).

20

On November 1, 2016, Draw filed a motion for extension of time (ECF No. 33),

21

requesting an extension of the time for him to make the election regarding Claim 6e. The

22

Court finds that the motion for extension of time is made in good faith and not solely for

23

the purpose of delay, and there is good cause for the extension of time requested. The

24

Court will grant Draw's motion for extension of time.

25

The Court reminds Draw that Claim 6e is his unexhausted claim that his federal

26

constitutional rights were violated, on account of ineffective assistance of his appellate

27

counsel, because his appellate counsel failed to assert claims of prosecutorial misconduct

28

for witness tampering and other misconduct, and claims of civil rights

1

violations. See Petition for Writ of Habeas Corpus (ECF No. 6 at 35-37). If Draw does not

2

file a notice abandoning Claim 6e within the time allowed, his entire action will be

3

dismissed pursuant to Rose. The dismissal would be "without prejudice;" however, if this

4

action is dismissed, even "without prejudice," it would be unlikely that Draw would ever

5

be able to initiate a new federal habeas petition, because of the operation of the statute

6

of limitations.

7
8

The Court will not be inclined to further extend the due date for Draw's notice of
abandonment of Claim 6e.

9

It is therefore ordered that petitioner's Motion for Enlargement of Time (ECF No.

10

33) is granted. Petitioner will have until and including December 23, 2016, to file a notice

11

of abandonment of Claim 6e.

12
13

DATED THIS 1st day of November 2016.

14
15

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
2