Marquez v. McDaniel et al

Filing 80

ORDERED Petitioner's motion to dismiss in part unexhausted grounds and proceed on exhausted grounds or subparts thereof (ECF No. 78 ) is granted. Grounds are dismissed as specified herein. Respondents will have 45 days from the dat e of entry of this order (5/23/2020) to file and serve an answer. Petitioner will have 45 days from service of answer to file a reply. Signed by Chief Judge Miranda M. Du on 4/7/2020. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ALEX MARQUEZ,

Case No. 3:15-cv-00492-MMD-CLB
Petitioner,

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ORDER

v.
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E.K. MCDANIEL, et al.,
Respondents.

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Petitioner Alex Marquez brought this habeas corpus action under 28 U.S.C. § 2254.

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(ECF No. 14.) The Court found that Petitioner had not exhausted his state-court remedies

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for parts of Grounds One, Three, and Seven. (ECF No. 77 at 3, 4, 5–6.) The Court also

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found that Petitioner had not exhausted his state-court remedies for all of Grounds Four,

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Five, Ten, and Eleven. (Id. at 4, 5, 6–7.) Petitioner has filed a motion to dismiss in part

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unexhausted grounds and proceed on exhausted grounds or subparts thereof. (ECF No.

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78.) The Court grants the motion.

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Ground Eleven is a claim that the cumulative effect of the errors alleged in Grounds

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One through Ten warrant relief. (ECF No. 14 at 32.) The Court found that Ground Eleven

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was unexhausted because Grounds One, Three, Four, Five, and Ten were not exhausted,

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in whole or in part. (ECF No. 77 at 6–7.) The Court had determined that it would not parse

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through what is left to find a claim of cumulative error. (Id.) Upon further reflection, the

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Court will consider the exhausted portions of Ground Eleven, which is how Petitioner

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presented the claim in his appeal from the denial of his state post-conviction habeas

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corpus petition.

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It is therefore ordered that Petitioner's motion to dismiss in part unexhausted

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grounds and proceed on exhausted grounds or subparts thereof (ECF No. 78) is granted.

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The following claims are dismissed from this action: Ground One as to rights other

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than the Fifth Amendment; Ground Three as to a violation equal protection or the Sixth

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Amendment; Ground Four; Ground Five; Ground Seven as to the five new claims of

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ineffective assistance of counsel; Ground Ten; Ground Eleven as to the unexhausted

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claims.

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It is further ordered that that Respondents will have 45 days from the date of entry

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of this order to file and serve an answer, which must comply with Rule 5 of the Rules

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Governing Section 2254 Cases in the United States District Courts. Petitioner will have 45

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days from the date on which the answer is served to file a reply.

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DATED THIS 7th day of April 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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