United States District Court, D. Nevada
ORDER VACATING JUDGMENT AND SCREENING
Jennifer A. Dorsey United States District Judge.
October 26, 2017, I dismissed this habeas corpus action
because petitioner Robert Hernandez had failed to either file
a motion for leave to proceed in forma pauperis or
pay the required filing fee. The following day judgment was
entered in favor of respondents and against
Hernandez. When I dismissed this action, I did so
without prejudice and ordered Hernandez to file a
new habeas action after paying the filing fee or
filing a completed pauper application if he wanted to pursue
his habeas claims. Hernandez did not follow my directions;
instead he paid the $5.00 filing fee on November 8,
2017. But in the interest of judicial
efficiency, I will set aside the dismissal and judgment,
direct the Clerk to file Hernandez's habeas petition, and
I will screen the petition.
reviewed the petition under Rule 4 of the Rules Governing
Habeas Corpus Cases Under Section 2254. Hernandez has not
exhausted with state-court post-conviction relief the lone
claim in his petition. A federal court may not grant habeas
corpus relief on a claim not exhausted in state
court. The exhaustion doctrine is based on the
policy of federal-state comity and is intended to allow state
courts the initial opportunity to correct constitutional
deprivations.To exhaust a claim, a petitioner must
fairly present the claim to the highest state court and give
that court the opportunity to address and resolve
federal habeas action, Hernandez asserts only that he was
deprived of his right to effective assistance of counsel
under the Sixth Amendment. But he indicates in his petition
that he has yet to file a state post-conviction petition with
respect to the conviction and sentence he is asking me to
review. Accordingly, Hernandez may not proceed in
this action without first exhausting his claims in state
grant Hernandez an opportunity to show cause why this action
should not be dismissed due to his failure to exhaust his
claim in state court. If he fails to show that he exhausted
his ineffective-assistance-of-counsel claim within the time
allowed, this case will be dismissed.
may alternatively file a motion to stay and abey his
unexhausted claim as provided in Rhines v.
Weber. Under Rhines, a district court
has discretion to stay a mixed or wholly unexhausted petition
to allow a petitioner time to present his or her unexhausted
claims to state courts. I will not grant a Rhines
stay, however, unless Hernandez “had good cause for his
failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the [he] engaged
in intentionally dilatory litigation
IT IS HEREBY ORDERED that the order and judgment entered on
October 26 and 27, 2017, [ECF Nos. 3 and 4]
respectively, are VACATED.
Clerk of Court is directed to DETACH
and FILE the habeas petition [ECF No.
1-1]. The Clerk of Court is also
directed to ADD Adam Paul Laxalt, Attorney
General of the State of Nevada, as counsel for respondents,
and electronically SERVE a copy of the petition and
this order upon the respondents.
FURTHER ORDERED that respondents' counsel must
enter a notice of appearance by December 11, 2017,
but need not take further action in the case unless and until
the court so orders.
FURTHER ORDERED that Hernandez has until December 21,
2017, to either (1) show cause why I should not
dismiss this action as unexhausted, or (2) file a motion to
stay and abey this unexhausted claim while he exhausts it
first in state court. If Hernandez does not respond
or fails to show good cause, this case will be dismissed
without further prior notice. If Hernandez responds
that his lone claim has been exhausted, he must attach with
his response copies of any and all papers that were accepted
for filing in the state courts that exhausted it. All factual
assertions must be specific and supported by competent
extensions of time will be granted to respond to this order
except in the most compelling of circumstances.
 ECF No. 3.