Lall v. Baca et al

Filing 16

ORDER that petitioner will have until 9/21/2018 to file a motion as outlined in order; Petitioner's failure to choose any of the three options listed, or seek other appropriate relief from this Court, will result in the dismissal of his f ederal habeas petition; Petitioner is advised to familiarize himself with the limitations periods for filing federal habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations periods may have a direct and substantial effect on whatever choice he makes regarding his petition. Signed by Judge Miranda M. Du on 9/6/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES LALL,

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Petitioner,

ORDER

v.

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Case No. 3:16-cv-00469-MMD-CBC

ISIDRO BACA, et al.,
Respondents.

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On June 26, 2018, the Court entered an order granting in part and denying in part

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the Respondents’ motion to dismiss. (ECF No. 14.) In particular, the Court found that the

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petition contains some unexhausted claims and is therefore mixed. As the Court may not

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entertain a mixed habeas petition, it directed Petitioner to elect how to proceed with his

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petition within thirty days of the date of the Court’s order. Petitioner has failed to timely

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respond to the Court’s order.

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The Court will give Petitioner one more opportunity to elect how to proceed on his

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mixed petition. It is therefore ordered that, within fifteen days of the date of entry of this

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order, Petitioner must either:

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1.

File a motion to dismiss seeking partial dismissal of only the unexhausted

claims;

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2.

File a motion to dismiss the entire petition without prejudice in order to return

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to state court to exhaust the unexhausted claims; and/or

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3.

File a motion for other appropriate relief, such as 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.

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With respect to the third option, a district court has discretion to stay a petition that

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it may validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276, (2005). The

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Rhines Court stated:

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[S]tay and abeyance should be available only in limited circumstances.
Because granting a stay effectively excuses a petitioner’s failure to present
his claims first to the state courts, stay and abeyance is only appropriate
when the district court determines there was good cause for the petitioner’s
failure to exhaust his claims first in state court. Moreover, even if a petitioner
had good cause for that failure, the district court would abuse its discretion
if it were to grant him a stay when his unexhausted claims are plainly
meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State”).
Rhines, 544 U.S. at 277.

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If Petitioner wishes to ask for a stay, he must file a motion for stay and abeyance

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in which he demonstrates good cause for his failure to exhaust his unexhausted claims

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in state court, and presents argument regarding the question of whether or not his

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unexhausted claims are plainly meritless. Respondents would then be granted an

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opportunity to respond, and Petitioner to reply. Alternatively, Petitioner may file a

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declaration voluntarily abandoning his unexhausted claims, as described above.

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Petitioner’s failure to choose any of the three options listed above, or seek other

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appropriate relief from this Court, will result in the dismissal of his federal habeas petition.

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Petitioner is advised to familiarize himself with the limitations periods for filing federal

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habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations periods may have

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a direct and substantial effect on whatever choice he makes regarding his petition.

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DATED THIS 6th day of September 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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