Geronimo Gutierrez v. Lorie Davis, Director, No. 16-70028 (5th Cir. 2017)

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Case: 16-70028 Document: 00514273588 Page: 1 Date Filed: 12/14/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-70028 GERONIMO RENE GUTIERREZ, Petitioner - Appellant United States Court of Appeals Fifth Circuit FILED December 14, 2017 Lyle W. Cayce Clerk v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee Appeal from the United States District Court for the Western District of Texas USDC No. 5:09-CV-543 Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges. PER CURIAM:* On August 30, 2017, we granted Appellant’s motion to stay proceedings in order to allow him to pursue an Atkins claim in state court in light of the Supreme Court’s decision in Moore v. Texas, 137 S. Ct. 1039 (2017). Because we granted Appellant’s motion based on his Atkins argument, we had no need to determine whether a stay was warranted pending the Supreme Court’s Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 16-70028 Document: 00514273588 Page: 2 Date Filed: 12/14/2017 No. 16-70028 decision in Wilson v. Sellers, No. 16-6855, 2017 WL 737820 (S. Ct. Feb. 27, 2017). We again decline to reach the merits of Appellant’s Sellers argument. However, we granted a stay premised on Appellant’s statement that he would promptly file his Atkins claim within ninety days of the Court’s stay order. Appellant failed to do so, instead filing a “status update” informing the court that he requires until February 26, 2018, to do so. We treat Appellant’s status update as a motion for extension of time to file and, finding good cause, GRANT that motion. IT IS ORDERED that Appellant shall have until February 26, 2018, to file his new Atkins claim. IT IS FURTHER ORDERED that Appellee’s motion for clarification, ECF No. 61, is DENIED as moot. 2

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