Benjamin v. State of Nevada

Filing 24

ORDER re ECF No. 23 Notice, dismissing Grounds 1 and 3-14 of ECF No. 17 Petition; dismissing State of Nevada as a Respondent; giving Respondents 90 days to file an answer. Petitioner to reply within 60 days thereafter. Signed by Judge Miranda M. Du on 12/21/2016. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 ROBIN LEE BENJAMIN, Case No. 3:16-cv-00024-MMD-VPC 11 12 13 Petitioner, ORDER v. ATTORNEY GENERAL, et al., 14 Respondents. 15 16 In this habeas corpus action, brought pro se by Robin Lee Benjamin, the Court 17 ruled on the respondents’ motion to dismiss on October 3, 2016. (See Order entered 18 October 3, 2016 (ECF No. 21).) In that order, the Court found all but one of Benjamin’s 19 claims — Grounds 1 and 3-14 — to be unexhausted in state court. The Court granted 20 Benjamin an opportunity to make an election with respect to her unexhausted claims; 21 Benjamin was directed to either file a notice stating that she wishes to abandon her 22 unexhausted claims, and proceed in this action with the litigation of her exhausted claim, 23 or file a motion for a stay, under Rhines v. Weber, 544 U.S. 269 (2005), requesting a stay 24 of this action while she exhausts her unexhausted claims in state court. 25 On December 19, 2016, Benjamin filed a notice (ECF No. 23) stating her election 26 to abandon her unexhausted claims and proceed with her exhausted claim. The Court 27 will accept Benjamin’s abandonment of her unexhausted claims. Those claims will be 28 dismissed. 1 Additionally, in the notice Benjamin filed on December 19, 2016, Benjamin states 2 that she wishes to dismiss the State of Nevada as a respondent, which is appropriate as 3 the State of Nevada is not a proper respondent in this habeas corpus action. 4 5 It is therefore ordered that Grounds 1 and 3-14 of petitioner’s amended petition for writ of habeas corpus (ECF No. 17) are dismissed. 6 It is further ordered that the State of Nevada is dismissed as a respondent. 7 It is further ordered that respondents will have ninety (90) days from the date of 8 this order to file an answer, responding to the remaining claim (the federal-law claim) in 9 Ground 2 of petitioner’s amended petition for writ of habeas corpus (ECF No. 17). 10 Thereafter, petitioner will have sixty (60) days to file a reply. 11 12 DATED THIS 21st day of December 2016. 13 14 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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