Mitchell v. Baca et al

Filing 63

ORDER that ECF Nos. 48 Motion for Appointment of Counsel, 50 Motion for Evidentiary Hearing, 51 Motion for Leave to File a Second-Amended Petition, 55 / 61 Motions for Reconsideration are all DENIED; petitioner is expressly advised that failure to comply with order as set forth will result in the dismiss of petition. Signed by Judge Larry R. Hicks on 4/17/2018. (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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WILLIAM MITCHELL,

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Case No. 3:16-cv-00384-LRH-WGC
Petitioner, ORDER

v.
BACA, et al.,
Respondents.

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On August 16, 2017, this court granted respondents’ motion to dismiss certain

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grounds in petitioner William Mitchell’s pro se 28 U.S.C. § 2254 petition for writ of habeas

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corpus (ECF No. 32). The court directed Mitchell to file a declaration within thirty days

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indicating that he either wished to abandon his unexhausted claims, or that this petition

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be dismissed without prejudice, or that he would seek a stay of these proceedings. Id.

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Mitchell filed a motion for reconsideration of this court’s order (ECF No. 40), which

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this court denied (ECF No. 46). Now before the court are Mitchell’s two motions for

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reconsideration of this court’s order denying reconsideration (ECF Nos. 55, 61). Mitchell

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has also filed a second motion for leave to file an amended petition (ECF No. 51) and a

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third motion for appointment of counsel (ECF No. 48).

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In short, none of these motions is well taken.

Mitchell seeks to add factual

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allegations regarding the unexhausted portions of ground 1 (see ECF No. 51-1).

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However, the proposed additional factual allegations have no bearing on the fact that

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Mitchell did not present these claims on appeal of the denial of his state postconviction

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petition. Again, the court notes that what it has construed as ground 1(d) (the claim that
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plea counsel rendered ineffective assistance of counsel because he knew that Mitchell

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was under the influence of psychiatric medication at the time and did not knowingly and

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voluntarily enter his guilty plea) will be considered by this court on the merits if Mitchell

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chooses to proceed with this petition (see ECF No. 32). Mitchell seeks to frame this claim

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as fraud upon the court or suborning perjury, arguing that his counsel falsely advised the

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court and let Mitchell falsely state to the court that Mitchell knowingly and voluntarily

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entered his guilty plea. However, the gravamen of the claim remains the same. Mitchell

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has already clearly set forth this claim, and he presents no new, compelling bases that

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the court should appoint counsel or that he should be given leave to file an amended

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petition. These pending motions are all denied.

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The court now grants petitioner an additional thirty (30) days to comply with this

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court’s earlier order by (1) informing this court in a sworn declaration that he wishes to

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formally and forever abandon the unexhausted grounds for relief in his federal habeas

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petition and proceed on the exhausted grounds; OR (2) informing this court in a sworn

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declaration that he wishes to dismiss this petition without prejudice in order to return to

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state court to exhaust his unexhausted claims; OR (3) filing a motion for a stay and

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abeyance, asking this court to hold his exhausted claims in abeyance while he returns to

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state court to exhaust his unexhausted claims. Id. The court is highly unlikely to grant

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any additional extensions, absent extraordinary circumstances.

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IT IS THEREFORE ORDERED that the following motions filed by petitioner:

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motion for appointment of counsel (ECF No. 48); motion for evidentiary hearing (ECF No.

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50); motion for leave to file a second-amended petition (ECF No. 51); and two motions

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for reconsideration (ECF Nos. 55 and 61) are all DENIED.

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IT IS FURTHER ORDERED that petitioner is expressly advised that failure to
comply with this order as set forth above will result in the dismissal of this petition.

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DATED this 17th day of April, 2018.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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