United States District Court, D. Nevada
M. NAVARRO UNITED STATES DISTRICT JUDGE.
a pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 filed by a Nevada state prisoner.
The petition was filed on June 23, 2014, (ECF No. 1), and on
October 21, 2014, the Court directed respondents to answer or
otherwise respond. On December 5, 2015, respondents filed an
answer. (ECF No. 9). Petitioner's reply was due to be
filed no later than January 20, 2015.
of filing a reply, petitioner moved for leave to supplement
his petition and to dismiss. Petitioner also filed a motion
to amend his motion to dismiss, which the Court construed as
a motion to amend the petition. On September 28, 2015, the
Court denied petitioner's motions and directed petitioner
to file any reply to the answer no later than October 28,
2015. Petitioner did not do so.
a year after the deadline to file a reply had expired,
petitioner filed a motion to amend his petition and/or to
stay and abey. (ECF Nos. 33 & 34). Respondents have
opposed (ECF No. 36), and petitioner has replied (ECF No.
39). In addition, respondents have filed a motion to
substitute (ECF No. 40), and petitioner has filed a motion
for judicial action (ECF No. 41).
initial matter, the respondents' motion to substitute
will be granted. Warden Renee Baker will be substituted in
place and stead of respondent Dwight Neven.
to petitioner's motion to amend and/or stay, petitioner
indicates in his reply that he is not at this time seeking to
amend his petition but instead is seeking only a stay;
petitioner indicates he would like to exhaust his new claims
in state court before amending the petition. (ECF No. 39 at
petition in this case is fully exhausted. The Court has
discretion to stay a fully exhausted petition to allow the
petitioner to exhaust claims that are not part of the
petition. See King v. Ryan, 564 F.3d 1133, 1140-41
(9th Cir. 2009). A stay of this type does not require a
showing of good cause. Id. at 1140. There is no
indication on the record that petitioner would be in a worse
position if he waits to amend his petition until after his
return from state court. Whether he amends the petition now
or whether he amends it later, the claims will likely have to
relate back to the claims in his original petition in order
to be considered timely. See Mayle v. Felix, 545
U.S. 644, 659 (2005). While it appears that many of the new
claims petitioner seeks to exhaust are untimely, at least
some of the claims could potentially relate back to claims in
the original petition. Accordingly, the Court concludes, in
its discretion, that a stay of the petition to allow
petitioner to exhaust his proposed new claims is appropriate.
This action will therefore be stayed and administratively
closed pending the exhaustion of the new claims in state
months after filing the motion to stay, petitioner filed a
motion for judicial action on his petition. (ECF No. 41).
Petitioner asserts that the Court has not taken any action on
his petition, including ordering an answer from the
respondents. This latter assertion is not true, as
respondents have filed their answer pursuant to court order.
However, the motion does not mention the pending motions to
stay and abey and to amend. It is therefore unclear if
petitioner is abandoning or withdrawing those motions and
would prefer to proceed to a determination of his original
petition on the merits. To the extent that petitioner no
longer wishes to return to state court to exhaust his new
claims and would instead prefer to proceed his pending
petition, petitioner may file a motion to reopen this action
within thirty days of this Court's order. Petitioner may
at the same time submit a new reply, if he so chooses, as the
reply that is on the record (ECF No. 38) does not appear to
respond to the answer and rather responds only to
respondents' opposition to the motion to amend and/or
stay. If petitioner does not submit a new reply at the time
of filing any motion to reopen, the Court will proceed to
decide the petition on the pleadings presently before the
Court. The motion for judicial action will therefore be
denied without prejudice.
accordance with the foregoing, IT IS THEREFORE ORDERED:
Respondents' motion to substitute (ECF No. 40) is
GRANTED. Warden Renee Baker is hereby substituted in place
and stead of respondent Dwight Neven;
Petitioner's motion to stay (ECF No. 34) is GRANTED.
Proceedings on this petition are hereby STAYED, and this
action shall be ADMINISTRATIVELY CLOSED pending a motion to
Petitioner's motion to amend (ECF No. 33) is DENIED
WITHOUT PREJUDICE to renew upon his return from state court;
Petitioner's motion for judicial action (ECF No. 41) is
DENIED WITHOUT PREJUDICE; and
Should petitioner no longer wish to return to state court to
exhaust his new claims, petitioner may file a motion to
reopen this action within thirty days of this Court's
order. Petitioner ...