Byars v. Williams et al

Filing 18

ORDER granting Petitioner's 17 Request to File a Protective Writ (treated as a motion for relief from judgment); vacating 16 Judgment; staying action while Petitioner exhausts his unexhausted claims; directing Clerk to administratively close the case. See order for further details. Signed by Judge Robert C. Jones on 3/4/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MICHAEL DWAYNE BYARS,

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Petitioner,
3:15-cv-00388-RCJ-VPC

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vs.

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BRYAN WILLIAMS, SR., et al.,

ORDER
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Respondents.
_______________________________/

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This action is a pro se petition for writ of habeas corpus by Nevada prisoner Michael Dwayne

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Byars. Byars submitted his habeas petition on July 27, 2015 (ECF No. 8), and it was filed on

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September 17, 2015, after he paid the filing fee (ECF Nos. 6, 7).

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On September 28, 2015, Byars filed a document entitled “Request for Stay and Abeyance

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[and] Withdrawal of Petition” (ECF No. 9), stating that his habeas petition initiating this case was

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filed prematurely, and that he “wishes to withdraw his petition,” so that he may return to state court

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to initially present his claims there. On October 9, 2015, respondents filed a response to Byars’

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motion (ECF No. 11). In their response, respondents noted that the title of Byars’ motion created

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some ambiguity with respect to Byars’ intention, and respondents indicated that they opposed a stay

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of this action. Byars’ then filed a further motion, entitled “Motion to Withdraw Petition” (ECF No.

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12), clarifying the purpose of his previous motion, and requesting that the court “allow him to

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withdraw his petition without prejudice.” Motion to Withdraw Petition, p. 2. Respondents did not

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respond to the second motion. On December 2, 2015, the court granted Byars’ motions, and

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dismissed this action without prejudice (ECF No. 15). Judgment was entered (ECF No. 16).

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Then, on January 29, 2016, Byars filed a document entitled “Request to File a Protective

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Writ” (ECF No. 17). In that document, Byars states that, with this action dismissed, he is concerned

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that there is a danger that he will be barred by the federal statute of limitations from filing a

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subsequent federal habeas action after completion of his state habeas action. According to Byars, this

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is because there was delay, beyond his control, in the filing of his state habeas action. Respondents

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did not respond to Byars’ January 29, 2016, motion.

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The motion filed by Byars on January 29, 2016, is in the nature of a motion for relief from

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judgment, pursuant to Federal Rule of Civil Procedure 60(b), and the court treats it as such. The

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motion for relief from judgment was filed within a reasonable time. See Fed.R.Civ.P. 60(c).

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Byars has shown good cause to grant his motion for relief from judgment. In Pace v.

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DiGuglielmo, the Supreme Court addressed the issue whether the statute of limitations for a federal

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habeas petition is tolled when a petitioner files an untimely petition in state court; holding that the

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statute is not tolled, the Court added:

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A prisoner seeking postconviction relief might avoid this predicament ... by filing a
“protective” petition in federal court and asking the federal court to stay and abey the
federal habeas proceedings until state remedies are exhausted.... A petitioner’s
reasonable confusion about whether a state filing would be timely will ordinarily
constitute “good cause” for him to file in federal court.

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Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005); see also Mena v. Long, ___ F.3d ___, 2016 WL

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625405 (9th Cir., February 17, 2016) (district court may stay a petition that raises only unexhausted

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claims). The court finds that Byars reasonably expresses concern about whether he will be able to

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timely file a subsequent federal habeas action if this case is dismissed. Respondents did not respond

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to that showing.

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The court will, therefore, grant Byars’ motion for relief from judgment, will order the

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judgment vacated, and will order this case stayed and administratively closed pending completion of

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Byars’ state habeas action.

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IT IS THEREFORE ORDERED that petitioner’s “Request to File a Protective Writ”

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(ECF No. 17) is treated as a motion for relief from judgment, pursuant to Federal Rule of Civil

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Procedure 60(b), and is GRANTED.

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IT IS FURTHER ORDERED that the judgment entered December 2, 2015, is VACATED.

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IT IS FURTHER ORDERED that this action shall be STAYED, while petitioner exhausts,

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in state court, all his unexhausted claims for habeas corpus relief. The clerk of the court shall

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administratively close this case.

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IT IS FURTHER ORDERED that, following the conclusion of petitioner’s state court
proceedings, petitioner shall, within 30 days, make a motion to lift the stay of this action.
IT IS FURTHER ORDERED that this action shall be subject to dismissal, upon a motion by

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respondents, if petitioner does not comply with the time limits in this order, or if he otherwise fails to

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proceed with diligence during the stay imposed pursuant to this order.

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4th day of March, 2016.
Dated this _____ day of February, 2016.

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UNITED STATES DISTRICT JUDGE
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