Mitchell v. Baca et al

Filing 75

ORDER that the motion for reconsideration ECF No. 64 , motion for clarification ECF No. 70 , motion for order granting petitioner's supplement to motion for reconsideration ECF No. 71 , and motion to strike ECF No. 73 are all DENIED; the petition is DISMISSED with prejudice for failure to comply with this courts order; a certificate of appealability is DENIED; Clerk directed to enter judgment and close case. Signed by Judge Larry R. Hicks on 11/2/2018. (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.
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BACA, et al.,
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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

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habeas corpus as unexhausted (ECF No. 32). The court directed Mitchell to file a

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declaration within thirty days indicating that he either wished to abandon his

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unexhausted claims, or that this petition be dismissed without prejudice, or that he

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would seek a stay of these proceedings. Id.

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Instead, Mitchell filed numerous motions for reconsideration, for evidentiary
hearing, and for leave to file an amended petition:
• motion for reconsideration of this court’s order (ECF No. 40), which this
court denied (ECF No. 46);

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•

second motion for leave to file an amended petition (ECF No. 51), which
this court denied (ECF No. 63);

•

third motion for appointment of counsel (ECF No. 48), which this court
denied (ECF No. 63).

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motion for evidentiary hearing (ECF No. 50), which this court denied (ECF
No. 63);

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•

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motions for reconsideration of this court’s order denying reconsideration
(ECF Nos. 55, 61), which this court denied (ECF No. 63).

In an April 17, 2018 order, this court denied most of the motions listed above

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(ECF No. 63). With respect to ground 1(d) (plea counsel was ineffective because he

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knew Mitchell was on psychiatric medication at the time and did not knowingly and

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voluntarily enter his guilty plea), the court explained, again, at length that

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Mitchell seeks to frame this claim as fraud upon the court or
suborning perjury, arguing that his counsel falsely advised the court and
let Mitchell falsely state to the court that Mitchell knowingly and voluntarily
entered his guilty plea. However, the gravamen of the claim remains the
same. Mitchell has already clearly set forth this claim, and he presents no
new, compelling bases that the court should appoint counsel or that he
should be given leave to file an amended petition

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(ECF No. 63, p. 2). The court then directed petitioner to file a declaration within

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thirty days indicating that he either wished to abandon his unexhausted claims, or that

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this petition be dismissed without prejudice, or that he would seek a stay of these

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proceedings. The court stated: “petitioner is expressly advised that failure to comply

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with this order as set forth above will result in the dismissal of this petition.” Id.

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Instead, Mitchell filed another motion for reconsideration (ECF No. 64), followed

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by a motion for clarification (ECF No. 70), and a motion for order granting petitioner’s

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supplement to motion for reconsideration (ECF No. 71). He insists on repeating, in

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motion after motion, his arguments about a “fraud upon the court” claim. More than a

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year has passed, and Mitchell has failed to comply with this court’s order to state what

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he wishes to do regarding his unexhausted claims. Accordingly, this petition is

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dismissed.

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

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motion for reconsideration (ECF No. 64); motion for clarification (ECF No. 70); motion

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for order granting petitioner’s supplement to motion for reconsideration (ECF No. 71);

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and motion to strike (ECF No. 73) are all DENIED.

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IT IS FURTHER ORDERED that this petition is DISMISSED with prejudice for
failure to comply with this court’s order.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and
close this case.

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DATED this 2nd day of November, 2018.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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