Stone v. State of Nevada, et al

Filing 48

ORDER - It is therefore ordered that Petitioner's motion for a stay and abeyance ECF No. 43 is granted. It is further ordered that this action is stayed pending authorization by the Ninth Circuit Court of Appeals under § 22 44(b)(3)(A) to file a second and successive petition. It is further ordered that Petitioner's unopposed motion for leave to file document ECF No. 46 is granted. The Clerk of Court is directed to administratively close this action, until such time as the Court grants a motion to reopen the matter. Signed by District Judge Anne R. Traum on 8/28/2024. (Copies have been distributed pursuant to the NEF - GA)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Randy M. Stone,
v.

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Petitioner,

Order Granting Motion to Stay

State of Nevada, et al.,

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Case No. 3:22-cv-00136-ART-CLB

(ECF No. 43)
Respondents.

Petitioner Randy M. Stone, through counsel the Federal Public Defender,
has filed a motion for stay and abeyance of this 28 U.S.C. § 2254 habeas corpus
matter while he seeks an order from the Ninth Circuit Court of Appeals
authorizing him to file this second and successive petition. (ECF No. 43.)
Respondents oppose, and Stone replied. (ECF Nos. 44, 45.) In order to allow
Stone to seek the requisite authorization, the Court grants the motion for stay.
Under 28 U.S.C. § 2244(b)(3)(A), “Before a second or successive
application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” “The court of appeals may authorize
the filing of a second or successive application only if it determines that the
application makes a prima facie showing that the application satisfied the
requirements” of 28 U.S.C. § 2244(b)(2). See, e.g., Seka v. Johnson, Case No.
22-1795 (9th Cir. Feb. 17, 2023) (granting application for authorization to file
second or successive habeas corpus petition and transferring proposed petition
to district court).
Stone seeks to challenge the same judgment of conviction that he
challenged in Stone v. Palmer, et al., Case No. 3:08-cv-00172-RCJ-VPC (D.Nev.
May 8, 2008) (“Stone I”). United States District Judge Robert C. Jones denied

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the petition in Stone I on its merits and denied a certificate of appealability on

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August 2, 2011. See Stone I, ECF No. 54. Stone appealed, and the Ninth Circuit

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Court of Appeals denied a certificate of appealability on March 20, 2012. See

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Stone I, ECF No. 60.
On September 29, 2014, Stone filed an application for leave to file a

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second or successive habeas corpus petition with the Ninth Circuit. The Ninth

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Circuit denied the application on December 17, 2014. See Stone v. Legrand,

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Case No. 14-73019.
This petition, therefore, is a second or successive habeas corpus petition

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under § 2244(b). Stone must obtain authorization from the Ninth Circuit before

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this Court may consider his petition. Stone now acknowledges this and informs

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the Court that he is currently seeking such authorization with the appeals

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court. (ECF No. 43.) He asks the Court to stay this case pending the grant or

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denial of such authorization. The Court accordingly grants the motion to stay.
It is therefore ordered that Petitioner’s motion for a stay and abeyance

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(ECF No. 43) is granted.
It is further ordered that this action is stayed pending authorization by

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the Ninth Circuit Court of Appeals under § 2244(b)(3)(A) to file a second and

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successive petition.
It is further ordered that the grant of a stay is conditioned upon Petitioner

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returning to federal court with a motion to reopen the case within 45 days of

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the court of appeals’ decision, whether he returns to voluntarily dismiss this

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Petition or to move to re-open this case and set a further briefing schedule.
It is further ordered that Petitioner’s unopposed motion for leave to file

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document (ECF No. 46) is granted.

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The Clerk of Court is directed to administratively close this action, until
such time as the Court grants a motion to reopen the matter.

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DATED THIS 28th day of August 2024.

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ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE

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