Hidalgo v. LeGrand et al

Filing 66

ORDER - Petitioner's Motion for Stay and Abeyance (ECF No. 63 ) is denied in part with respect to staying the case and granted in part with respect to an extension of time to file the Third Amended Petition. Petitioner will have u ntil December 4, 2020 to file a Third Amended Petition. The Scheduling Order of September 6, 2019 (ECF No. 58 ) otherwise remains in effect. Signed by Chief Judge Miranda M. Du on 11/9/2020. (Copies have been distributed pursuant to the NEF - AB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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LUIS A. HIDALGO,

Case No. 3:16-cv-00618-MMD-WGC
Petitioner,

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ORDER

v.
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ROBERT LEGRAND, et al.,
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Respondents.
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This is a habeas corpus action under 28 U.S.C. § 2254. A third amended petition

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was due on August 7, 2020. On July 31, 2020, Petitioner Luis Hidalgo filed a motion for

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stay and abeyance (ECF No. 63 (“Stay Motion”)). Respondents oppose the Stay Motion.

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(ECF No. 64.) Petitioner filed a reply. (ECF No. 65 (“Reply”).) In the Reply, Petitioner

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proposes an alternative request for an extension of time to file a third amended petition.

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The Court grants Petitioner this alternative request.

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Timothy Hadland was murdered on May 19, 2005. The murder resulted in two state

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criminal cases with six defendants. Four of the six defendants—including Petitioner—

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have filed habeas corpus petitions under 28 U.S.C. § 2254. Petitioner was appointed

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counsel (“federal counsel”) in this case. (ECF No. 58.)

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Petitioner states that he filed in the state district court a motion to modify his

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sentence and a motion for appointment of counsel. (ECF Nos. 63 at 3, 63-1.) Petitioner

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was appointed counsel (“state counsel”) in his state action. (ECF No. 63 at 4.) Petitioner’s

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federal and state counsel arranged for Petitioner’s federal counsel to prepare “all actual

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and/or potential” unexhausted claims, and then Petitioner’s state counsel would include

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those claims in a pending supplement in the state action. (Id.) The supplement had to be

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filed by October 30, 2020. (Id. at 4-5.) Petitioner moved to stay this action while Petitioner

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exhausts claims in state court. (Id.)

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Petitioner filed in state court his motion to modify his sentence on July 31, 2020.

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(Id. at 3.) The Court has checked the online docket of the state-court case.1 The most

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recent docket entry, on October 27, 2020, is a stipulation and order for a briefing schedule.

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It does not appear that Petitioner’s state counsel has yet filed the supplement.

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What Petitioner initially proposes in the Stay Motion is a combination of two

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situations the Court encounters in habeas corpus cases. First, Petitioner might file an

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amended petition and simultaneously seek leave to file a further amended petition with a

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waiver of LR 15-1's requirement to attach a proposed amended petition. Second,

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Petitioner might ask the Court to stay the action because post-conviction proceedings

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occurring in state court would exhaust the grounds in this case. The Court has granted

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both types of requests in different cases, or at different times in the same case.

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By combining these two types of requests, Petitioner has created a motion to stay

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the case that is premature. Petitioner is asking the Court to stay this action based upon a

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not-yet-filed petition in state court that might exhaust claims in a not-yet-filed third

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amended petition with this Court. The Court does not have the documents to determine

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whether a stay is appropriate, and it appears that those documents do not yet exist.

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However, Petitioner’s Reply proposes an alternative whereby Petitioner is given

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an extension to December 4, 2020 to file a third amended petition with the Court. The

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extension would allow Petitioner to file the state-court supplement and then file the third

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amended petition with the new claims with this Court. Although the state-court

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supplement does not appear to have been filed by its initial due date, this is the better

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route in which to proceed. The third amended petition would make Petitioner’s claims

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certain. That certainty is lacking with the initial request to stay the case.

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It is therefore ordered that Petitioner's motion for stay and abeyance (ECF No. 63)

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is denied in part with respect to staying the case and granted in part with respect to an

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extension of time to file the third amended petition. Petitioner will have until December 4,

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1Petitioner’s

state court action, State v. Hidalgo, Case No. 05C212667-2, can be
located online at https://www.clarkcountycourts.us. Docket report generated on
November 3, 2020.
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2020 to file Petitioner’s third amended petition. The scheduling order of September 6,

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2019 (ECF No. 58) otherwise remains in effect.

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DATED THIS 9th Day of November 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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