Hill v. Filson et al

Filing 40

ORDER - P shall file sworn declaration by 5/5/2019 re abandonment of unexhausted grounds or dismissal of petition without prejudice as specified herein. P's Motion for copies (ECF No. 38 ) is denied without prejudice. No further courtesy copies of any filings or exhibits are required at this time.Signed by Judge Miranda M. Du on 4/15/2019. (Copies have been distributed pursuant to the NEF - DRM)

1
2

UNITED STATES DISTRICT COURT

3

DISTRICT OF NEVADA

4

***

5

JOAQUIN BROUSHON HILL,

6

Case No. 3:16-cv-00694-MMD-WGC
Petitioner,

ORDER

v.
7
TIMOTHY FILSON, et al.,
8
Respondents.
9
10

This pro se 28 U.S.C. § 2254 habeas petition by Joaquin Broushon Hill is before

11

the Court on Hill’s declaration regarding unexhausted claims. The Court denied Hill’s

12

motion to stay (ECF No. 33). The Court further directed Hill to either (1) inform this Court

13

in a sworn declaration that he wishes to formally and forever abandon the unexhausted

14

grounds for relief in his federal habeas petition and proceed on the exhausted ground; or

15

(2) inform this Court in a sworn declaration that he wishes to dismiss this petition without

16

prejudice in order to return to state court to exhaust his unexhausted claims.

17

Hill filed a timely response, which he styled as a declaration and titled “A

18

Declaration Appropriate Public Notice Make and Amend Rules Governing if Prejudice and

19

to Dismiss without Prejudice to Return to State Court to Exhaust the Unexhausted

20

Publication” (ECF No. 34). Respondents note that Hill’s declaration is ambiguous: Hill (1)

21

states he wishes to voluntarily dismiss his Petition so that he can pursue his unexhausted

22

claims in state court; (2) seeks a hearing on the motion for stay and being forced to

23

dismiss his Petition; (3) argues the state district court judge is biased; (4) argues his actual

24

innocence; (5) argues prosecutorial misconduct; and (6) seeks an extension of time to

25

exhaust his claims without prejudice (ECF No. 35).

26

Thus, Respondents appropriately seek an order from the Court directing Hill to file

27

a declaration that clearly chooses between the two options set out in the first paragraph

28

of this order.

1

Hill has also filed a motion for new copies (ECF No. 38). He states that he has

2

been transferred and that some of his “legal mail and other records” are missing. He notes

3

that he believes prison personnel are retaliating against him and also states that he is

4

pursuing a grievance on the matter. Hill’s motion is denied without prejudice. If Hill does

5

not recover the material that he believes he needs pursuant to the grievance process, he

6

may file a new motion that specifically identifies what filing or exhibit he is missing and

7

why he needs it to litigate this Petition.

8

It is therefore ordered that Petitioner shall have 20 days to either: (1) inform this

9

Court in a sworn declaration that he wishes to formally and forever abandon the

10

unexhausted grounds for relief in his federal habeas petition and proceed on the

11

exhausted ground; or (2) inform this Court in a sworn declaration that he wishes to dismiss

12

this Petition without prejudice in order to return to state court to exhaust his unexhausted

13

claims.

14

It is further ordered that if Petitioner elects to abandon his unexhausted grounds,

15

Respondents will have 30 days from the date Petitioner serves his declaration of

16

abandonment in which to file an answer to Petitioner’s remaining ground—ground 5(a)—

17

for relief. The answer must contain all substantive and procedural arguments as to the

18

surviving ground and comply with Rule 5 of the Rules Governing Proceedings in the

19

United States District Courts under 28 U.S.C. §2254.

20
21

It is further ordered that Petitioner will have 30 days following service of
Respondents’ answer in which to file a reply.

22
23

It is further ordered that if Petitioner fails to respond to this order within the time
permitted, this case may be dismissed without further notice.
It is further ordered that Petitioner’s motion for new copy of records (ECF No. 38)

24
25

is denied without prejudice as set forth in this order.

26

///

27

///

28

///

2

1
2
3

It is further ordered that no further courtesy copies of any filings or exhibits are
required at this time.
DATED THIS 15th day of April 2019.

4
5

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3