Battle v. Byrne et al

Filing 13

ORDER that Grounds 1(b) and 2 are dismissed without prejudice as withdrawn by the Petitioner; denying as moot ECF No. 9 Respondents' Motion to Dismiss; Respondents must file an answer to the remaining grounds in the petition by 12/29/2016. Petitioner may file a reply within 45 days of service of the answer. Signed by Judge Miranda M. Du on 11/14/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JACK JOSEPH BATTLE, JR.,

Case No. 3:16-cv-00242-MMD-WGC

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Plaintiff,

ORDER

v.
WARDEN BYRNE, et al.,
Defendants.

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This habeas matter comes before the Court on respondents’ motion to dismiss
(ECF No. 9), which is not opposed.

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Respondents contend in the motion to dismiss that claims that they designate as

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Grounds 1(B) and 2(B), 2(C) and 2(D) from the three-ground petition are unexhausted. In

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response, petitioner requests leave to withdraw “Grounds 1(B) and (2).” He requests that

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the Court “solely proceed on exhausted Ground (1)(A),” presumably along with the also

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remaining Ground 3 in the petition.

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The Court will grant petitioner the relief that he specifically requests, which is a
dismissal of Grounds 1(B) and 2 as withdrawn.

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This dismissal in large part moots the motion to dismiss. The remaining claim

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designated by respondents as Ground 1(A) consists of a claim that petitioner was denied

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rights to due process, a fair trial and effective assistance of counsel due to cumulative

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error. The only cumulative error claim exhausted in the state courts was one of alleged

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cumulative ineffective assistance of trial and appellate counsel. Respondents contend

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that the Court should consider cumulative error based upon only exhausted claims of

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ineffective assistance of counsel that also are presented in the federal petition. (ECF No.

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9 at 8.)

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The Court is not persuaded. If petitioner has exhausted the cumulative-error claim,

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then he may pursue that exhausted claim on federal habeas review even if he, for

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whatever reason, opts not to also pursue related ineffective-assistance claims in federal

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court. Respondents cite no authority to the contrary. That said, the Court expresses no

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opinion as to whether a petitioner can demonstrate that the rejection of an essentially now

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stand-alone cumulative error claim constituted an objectively unreasonable application of

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clearly established federal law where (a) the state courts held that petitioner had not been

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denied effective assistance on any individual claim and (b) petitioner does not challenge

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those holdings in specifically alleged claims in federal court.
It is therefore ordered that Grounds 1(B) and 2 are dismissed without prejudice as

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withdrawn by the petitioner.
It is further ordered that respondents’ motion to dismiss (ECF No. 9) is denied as

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moot.

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It is further ordered that respondents must file an answer to the remaining grounds

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in the petition within forty-five (45) days of entry of this order. Petitioner may file a reply

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within forty-five (45) days of service of the answer.

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DATED THIS 14th day of November 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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