Eubanks v. Baker et al
ORDER that Petitioner's motion for stay and abeyance (ECF No. 48 ) is granted; this action is stayed pending exhaustion of Petitioner's unexhausted claims; the grant of a stay is conditioned upon Petitioner returning to this Court with a motion to reopen within 45 days of issuance of the remittitur by the Supreme Court of Nevada at the conclusion of the state court proceedings; Respondents' motion to dismiss (ECF No. 45 ) is denied without prejudice; all pending m otions for extension of time (ECF Nos. 44 , 46 , and 49 ) are granted nunc pro tunc as of their respective filing dates; Clerk directed to administratively close this action, until such time as the Court grants a motion to reopen the matter. Signed by Judge Miranda M. Du on 8/28/2018. (Copies have been distributed pursuant to the NEF - LH)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Case No. 3:16-cv-00336-MMD-WGC
RENEE BAKER, et al.,
On February 7, 2018, Respondents filed a motion to dismiss the habeas petition
in this case, claiming, among other things, that several claims in the Petition are
unexhausted. (ECF No. 45.) In response, Petitioner filed a motion for stay and abeyance,
conceding that the Petition contains unexhausted claims and notifying the Court that he
initiated a state proceeding on November 3, 2017, for the purpose of presenting his
unexhausted claims to the state courts. (ECF No. 48.)
Without conceding that Petitioner meets the requirements for stay and abeyance,
Respondents “agree that this Court’s interests in judicial economy, and state interests in
comity, would be best served by allowing the state courts to have the first opportunity to
address Eubanks’s unexhausted claims for relief.” (ECF No. 50). See Rhines v. Weber,
544 U.S. 269, 277 (2005) (outlining requirements for stay and abeyance in habeas
This Court has the inherent power to control its docket and the disposition of its
cases with economy of time and effort for both the Court and the parties. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). Under the circumstances present here,
the Court will exercise its discretion to grant a stay.
It is therefore ordered that Petitioner's motion for stay and abeyance (ECF No. 48)
is granted. This action is stayed pending exhaustion of Petitioner’s unexhausted claims.
It is further ordered that the grant of a stay is conditioned upon Petitioner returning
to this Court with a motion to reopen within forty-five (45) days of issuance of the remittitur
by the Supreme Court of Nevada at the conclusion of the state court proceedings.
It is further ordered that Respondents’ motion to dismiss (ECF No. 45) is denied
It is further ordered that all pending motions for extension of time (ECF Nos. 44,
46, and 49) are granted nunc pro tunc as of their respective filing dates.
It is further ordered that the Clerk administratively close this action, until such time
as the Court grants a motion to reopen the matter.
DATED THIS 28th day of August 2018.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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