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Lopez v. Filson

United States District Court, D. Nevada

December 4, 2017

RICARDO JOSE LOPEZ, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         This habeas matter under 28 U.S.C. § 2254 comes before the Court on respondents' motion to dismiss. (See ECF No. 83, corrected by ECF No. 84.) Respondents seek the dismissal of certain claims following a stay to exhaust state judicial remedies.

         I. BACKGROUND

         Petitioner Ricardo Lopez challenges his Nevada state conviction, pursuant to a jury verdict, of murder with the use of a deadly weapon and attempted murder with the use of a deadly weapon. In a February 20, 2013, order, this Court, inter alia, (a) held that paragraphs 2, 3, 5, 6 and 7 of Ground 4(A) were unexhausted; and (b) dismissed Ground 5 as noncognizable. (ECF No. 30 at 8.) On July 17, 2013, the Court granted petitioner's motion for a stay to return to the state courts to exhaust the unexhausted claims. (ECF No. 36.) On January 14, 2015, the Court granted petitioner's motion to reopen the matter. (ECF No. 43.) Petitioner thereafter filed a second amended petition (ECF No. 67), and respondents have filed the present motion to dismiss.

         II. DISCUSSION

         A. Alleged Failure to Comply with the Stay Order

         Respondents contend that the second amended petition should be dismissed because petitioner allegedly failed to comply with the provisions of the stay order.

         The July 17, 2013, order provided in pertinent part:

IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner filing a state post-conviction petition or other appropriate proceeding in state court within forty-five (45) days from the entry of this order and returning to federal court with a motion to reopen and an amended petition incorporating the dismissed grounds for relief within forty-five (45) days of issuance of the remittitur by the Supreme Court of Nevada at the conclusion of the state court proceedings.
IT IS FURTHER ORDERED that this action shall be subject to dismissal upon a motion by respondents if petitioner does not comply with the time limits in this order, or if he otherwise fails to proceed with diligence during the stay imposed pursuant to this order.

(ECF No. 36 at 3.)

         Petitioner already had a proper person state post-conviction petition pending in the state district court at the time of the July 17, 2013, order. (See ECF No. 39-1; Exhibit 131.) He filed a motion to reopen in this Court on December 22, 2014, which was within forty-five (45) days of the November 13, 2014, issuance of the remittitur at the conclusion of the state court proceedings. (See ECF No. 39-23; Exhibit 153.)

         Respondents maintain that the Court should dismiss the second amended petition because petitioner filed an identical second petition in the state court on November 14, 2013, that allegedly complicated and delayed the state proceedings. The two petitions were addressed in a single, consolidated appeal, in state proceedings spanning only sixteen months. (See ECF No. 39-22; Exhibit 152.) Respondents contend that the prior stay order “was expressly conditioned on [petitioner] filing an ‘appropriate' proceeding in state court.” (ECF No. 84 at 4.) Respondents urge that petitioner's filing of two successive post-conviction petitions violated the Court's order because they were not “appropriate proceedings.” (Id.)

         The Court is not persuaded. Respondents misread the provision in question. The provision did not condition the stay upon whether or not the manner in which petitioner prosecuted the state proceedings was in one sense or another “appropriate.” Rather, the provision conditioned the stay upon petitioner timely “filing a state post-conviction petition or other appropriate proceeding.” (ECF No. 36 at 3.) That language allowed the petitioner flexibility in the type of proceeding or proceedings that he filed in the state court, i.e., allowing petitioner to file a state post-conviction petition and/or some other appropriate type of proceeding if necessary to exhaust the claims. Petitioner complied with the order by having filed a state post-conviction petition - a type of filing expressly contemplated by the order - prior to the applicable time period. The ...


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