Crisci v. Donat et al, No. 3:2008cv00002 - Document 47 (D. Nev. 2010)

Court Description: ORDER GRANTING in part and DENYING in part Rs' # 44 Motion to Dismiss, as specified herein. FURTHER ORD P shall inform court re abandonment/exhaustion/stay by 10/18/2010. FURTHER ORD if P elects to abandon unexhausted grounds then Rs answer d ue 30 days from service of P's declaration. FURTHER ORD P Reply due 30 days following service of answer. FURTHER ORD that if P fails to respond to this order timely, this case may be dismissed. Signed by Judge Robert C. Jones on 9/28/2010. (Copies have been distributed pursuant to the NEF - DRM)
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Crisci v. Donat et al Doc. 47 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 JOSEPH JOHN CRISCI, 9 10 11 12 13 ) ) Petitioner, ) ) vs. ) ) WILLIAM DONAT et al., ) ) Respondents. ) ____________________________________) 3:08-cv-00002-RCJ-VPC ORDER 14 Petitioner Joseph John Crisci, a Nevada state prisoner represented by counsel, has filed for a writ 15 of habeas corpus pursuant to 28 U.S.C. § 2254. Before the Court is Respondents’ Motion to Dismiss 16 (ECF No. 44). 17 I. FACTS AND PROCEDURAL HISTORY 18 A. 19 On October 6, 2003, the Washoe County District Attorney charged petitioner and two co- 20 defendants in the Sparks Township Justice Court with three felonies: (1) robbery with the use of a deadly 21 weapon; (2) burglary; and (3) conspiracy to commit robbery with the use of a deadly weapon. (See 22 Compl., Oct. 2, 2006, ECF No. 41-9, at 2). The preliminary hearing occurred on November 10, 2003, 23 March 12, 2004, and March 15, 2004, (see Tr., ECF No. 41-11), and Petitioner was represented by 24 Steven L. Sexton. The case was bound over to the Second Judicial District Court (of Nevada). (See id.). 25 An information filed on March 17, 2004 contained the same charges as the criminal complaint. (See 26 Information, Mar. 17, 2004, ECF No. 41-12). At his March 20, 2004 arraignment, Petitioner pled not Case No. 04-0649 Dockets.Justia.com 1 guilty. (See Proceedings, Mar. 20, 2004, ECF No. 41-8). On May 6, 2004, petitioner changed his plea 2 to guilty as to Count I, robbery with the use of a deadly weapon. (See id.). On September 16, 2004, 3 Robert H. Broili replaced Steven Sexton as petitioner’s counsel. (See Substitution of Attorney, Sept. 16, 4 2004, ECF No. 41-14). Attorney Broili moved for a psychological examination of petitioner and to 5 withdraw the guilty plea. (See Tr., Sept. 16, 2004, ECF No. 41-15). On February 24, 2005, the court 6 sentenced Petitioner to 24–84 months imprisonment for robbery with the use of a firearm or deadly 7 weapon, with another term of 24–84 months for use of a deadly weapon, to be served consecutively, with 8 credit for 502 days of time served. (See J., Feb. 24, 2005, ECF No. 41-16). Petitioner did not appeal the 9 conviction. 10 B. 11 On December 3, 2003, the Washoe County District Attorney charged Petitioner with nine counts 12 of robbery with the use of a deadly weapon and one count of conspiracy to commit robbery in the Second 13 Judicial District Court (of Nevada), and arraignment was continued for two weeks. (See Proceedings, 14 ECF No. 22-1, at 2). Case No. 03-2701 15 At a January 13, 2004 hearing, Petitioner’s attorney, Mr. Sexton, asked the court to remand the 16 matter to the justice court. The court denied the request at that time, (see id.), but on January 29, 2004, 17 the court remanded. The preliminary hearing was set for April 14, 2004, but on April 15, 2004, 18 Petitioner’s attorney filed a waiver. (See Waiver, ECF No. 22-2, at 10). 19 On May 13, 2004, the court arraigned Petitioner on the second information, and Petitioner 20 changed his plea to guilty on Counts I through VII. (See Tr., May 13, 2004, ECF No. 22-2, at 22). On 21 September 16, 2004, Robert H. Broili replaced Steven Sexton as petitioner’s counsel, and Broili moved 22 to withdraw the pleas. (See Substitution of Attorney, Sept. 16, 2004, ECF No. 41-14; Tr., Sept. 16, 23 2004, ECF No. 41-15). On October 28, 2004, Broili sought a continuance in order to prepare a motion 24 for psychiatric evaluation. On November 11, 2004, Broili argued for a psychiatric evaluation at public 25 expense, and the court denied that motion. Broili arranged for two psychiatric evaluations of petitioner, 26 but only one evaluation had been prepared. 2 1 At a January 4, 2005 hearing, the court found petitioner competent to stand trial. (See Tr., Jan. 2 4, 2005, ECF No. 22-5, at 13). At a February 24, 2005 hearing, Broili withdrew his motion to withdraw 3 the guilty plea, and Petitioner proceeded to sentencing. (Tr., Jan. 13, 2009, ECF No. 22-8, at 4). Dr. 4 Sally Skewis testified to Petitioner’s mental status as an expert at that hearing. (See id.). 5 Petitioner was sentenced as follows: Count I - 48 to 156 months, with a consecutive sentence of 6 48-156 months for the use of a deadly weapon; Count II - 24 to 48 months, with a consecutive sentence 7 of 24 to 48 months for the use of a deadly weapon; Count III - 24 to 48 months, with a consecutive 8 sentence of 24 to 48 months for the use of a deadly weapon; Count IV - 24 to 48 months, with a 9 consecutive sentence of 24 to 48 months for the use of a deadly weapon; Count V - 24 to 48 months, 10 with a consecutive sentence of 24 to 48 months for the use of a deadly weapon; Count VI - 36 to 156 11 months, with a consecutive sentence of 36 to 156 months for the use of a deadly weapon; and Count VII 12 - 36 to 156 months, with a consecutive sentence of 36 to 156 months for the use of a deadly weapon. 13 All sentences were to run concurrently with respect to the others and with respect to the sentence in Case 14 No. 04-0649. (Id.; J., Feb. 24, 2005, ECF 23-1, at 2). Petitioner did not file a direct appeal. 15 C. 16 Petitioner filed a post-conviction habeas petition in state district court on June 6, 2005. (Pet., June 17 2, 2005, ECF No. 23-1, at 13). On June 28, 2005, the state district court appointed Mary Lou Wilson 18 to represent Petitioner in his post-conviction proceedings. (See Order, June 28, 2005, ECF No. 23-2, at 19 19). Counsel filed a supplement to the petition on August 25, 2005. (Supl., Aug. 25, 2005, ECF Nos. 20 23-3 to 23-8). The state district court issued an order denying the petition on November 9, 2005. (Order, 21 Nov. 9, 2005, ECF No. 24-9, at 15). Petitioner filed a notice of appeal on December 2, 2005. (See 22 Notice of Appeal, Dec. 2, 2005, ECF No. 24-10). Petitioner’s counsel filed a fast track statement 23 (“FTS”) on January 3, 2006, raising one issue: “Whether the district court erred in dismissing the 24 petitions [sic] absent an evidentiary hearing when there was [sic] supporting witnesses and documentation 25 showing trial counsel failed to defend Appellant under theories of insanity, duress, alibi and good 26 character?” (FTS 5:13–15, Jan. 3, 2006, ECF No. 41-6). On January 9, 2006, Respondents filed a State Post-Conviction Proceedings 3 1 Confession of Error/Request for Remand with the Nevada Supreme Court. (See ECF No. 41-7). On 2 February 24, 2006, the Nevada Supreme Court filed an order vacating judgment and remanding. (Order, 3 Feb. 24, 2006, ECF No. 25-1, at 18). 4 The state district court held an evidentiary hearing on June 15 and September 22, 2006. (See ECF 5 Nos. 25-4 to 25-6 and 26-2 to 26-4). On October 19, 2006, the state district court entered findings of 6 fact, conclusions of law, and the order denying relief. (See Order, Oct. 19, 2006, ECF No. 26-5, at Ex. 7 94). 8 Petitioner filed a notice of appeal on October 30, 2006. (See ECF No. 26-5, at Ex. 96). On 9 December 15, 2006, that appeal, and Petitioner’s previous appeal (Appeal Nos. 48336 and 48339) were 10 consolidated. (See Order, Dec. 15, 2006, ECF No. 26-6, at Ex. 106). Petitioner filed a FTS on December 11 15, 2006. (See FTS, Dec. 15, 2006, ECF No. 26-6, at Ex. 107). The FTS raised the following issues: 12 1. Whether the district court erred in finding trial counsel Sexton effective when encouraging Crisci to enter guilty pleas when he was under the influence of inconsistent medications, drooling and slobbering, and “following his legal representative”? 13 14 17 2. Whether the district court erred in finding trial counsel Sexton effective when he knew about Crisci’s defenses of insanity, alibi, and good character and insisted upon guilty pleas and trial cousel Broili effective when he was hired to withdraw his guilty plea and proceeded with sentencing, despite knowing that Crisci had viable defenses of insanity, duress, alibi, and good character? 18 (See id. 6). filed a fast track response. (See Response, Dec. 29, 2006, ECF No. 26-7, at Ex. 110). The 19 Nevada Supreme Court filed an order of affirmance on February 8, 2007. (See Order, Feb. 8, 2007, ECF 20 No. 26-7, at Ex. 111). Remittitur issued on March 6, 2007. (See ECF No. 26-7, at Ex. 114). 15 16 21 D. 22 Petitioner filed the present federal habeas corpus Petition pursuant to 28 U.S.C. § 2254 on 23 January 2, 2008. (See Pet., Jan. 2, 2008, ECF No. 5). Respondents moved to dismiss. (See Mot., Jan 21, 24 2008, ECF No. 19). On July 2, 2009, this Court denied the motion to dismiss and appointed the Federal 25 Public Defender to represent petitioner in these proceedings. (See Order, July 2, 2009, ECF No. 35). Federal Proceedings 26 4 1 Petitioner filed the first amended petition (“FAP”) on December 31, 2009. (See FAP, Dec. 31, 2009, ECF 2 No. 40). The FAP contains the following claims: 3 GROUND ONE 4 CRISCI’S GUILTY PLEAS WERE NOT ENTERED KNOWINGLY, INTELLIGENTLY, OR VOLUNTARILY IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 5 6 .... 7 8 GROUND TWO 9 DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE INDUCED CRISCI TO ENTER A PLEA THAT WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT. BECAUSE OF THIS UNPROFESSIONAL ERROR, CRISCI IS IMPRISONED IN VIOLATION OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS. 10 11 12 .... 13 14 GROUND THREE 15 DEFENSE COUNSEL WAS INEFFECTIVE BECAUSE HE FAILED TO ADEQUATELY INVESTIGATE CRISCI’S CASE AND PREPARE A DEFENSE, CAUSING CRISCI TO ACCEPT A PLEA THAT HE OTHERWISE WOULD NOT HAVE ACCEPTED. BECAUSE OF THIS UNPROFESSIONAL ERROR, CRISCI IS IMPRISONED IN VIOLATION OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIFTH AND FOURTEENTH AMENDMENTS. 16 17 18 19 .... 20 GROUND FOUR 21 REPLACEMENT COUNSEL FAILED TO PRESENT CRISCI’S MERITORIOUS REQUEST TO WITHDRAW HIS PLEA TO THE COURT. BECAUSE OF THIS UNPROFESSIONAL ERROR, CRISCI IS IMPRISONED IN VIOLATION OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS. 22 23 24 25 26 5 1 (Id. 6, 11, 12, 14).1 Respondents have moved to dismiss the FAP. (See Mot., Feb. 16, 2010, ECF No. 2 44). Respondents contend that Petitioner bases Grounds One and Two on unexhausted factual and legal 3 arguments and that Petitioner’s Exhibit 119, the forensic psychiatric assessment of Thomas E. Bittker, 4 M.D., filed with the FAP, was not presented to the Nevada Supreme Court, rendering the amended 5 petition unexhausted. (See id.).2 6 II. DISCUSSION 7 A. 8 A federal court will not grant a state prisoner’s petition for habeas relief until the prisoner has 9 exhausted his available state remedies for all claims raised. Rose v. Lundy, 455 U.S. 509 (1982); 28 10 U.S.C. § 2254(b). A petitioner must give the state courts a fair opportunity to act on each of his claims 11 before he presents those claims in a federal habeas petition. O’Sullivan v. Boerckel, 526 U.S. 838, 844 12 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim remains unexhausted until the 13 petitioner has given the highest available state court the opportunity to consider the claim through direct 14 appeal or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); 15 Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). Exhaustion Standard 16 A habeas petitioner must “present the state courts with the same claim he urges upon the federal 17 court.” Picard v. Connor, 404 U.S. 270, 276 (1971). The federal constitutional implications of a claim, 18 not just issues of state law, must have been raised in the state court to achieve exhaustion. Ybarra v. 19 Sumner, 678 F. Supp. 1480, 1481 (D. Nev. 1988) (citing Picard, 404 U.S. at 276). To achieve 20 exhaustion, the state court must be “alerted to the fact that the prisoner [is] asserting claims under the 21 United States Constitution” and given the opportunity to correct alleged violations of the prisoner’s 22 federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); see Hiivala v. Wood, 195 F.3d 1098, 1106 23 24 25 1 Presumably, Petitioner means to invoke the Sixth Amendment, as opposed to the Fifth, in Grounds Two and Three. 2 26 Although Respondents appear on the face of the motion to move against the Petition in its entirety, they specifically attack only Ground One, Ground Two, and Exhibit 119. 6 1 (9th Cir. 1999). It is well settled that 28 U.S.C. § 2254(b) “provides a simple and clear instruction to 2 potential litigants: before you bring any claims to federal court, be sure that you first have taken each one 3 to state court.” Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (quoting Rose v. Lundy, 455 U.S. 509, 4 520 (1982)). 5 A claim is not exhausted unless the petitioner has presented to the state court the same operative 6 facts and legal theory upon which his federal habeas claim is based. Bland v. Cal. Dep’t of Corr., 20 F.3d 7 1469, 1473 (9th Cir. 1994). The exhaustion requirement is not met when the petitioner presents to the 8 federal court facts or evidence which place the claim in a significantly different posture than it was in the 9 state courts, or where different facts are presented at the federal level to support the same theory. See 10 Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988); Pappageorge v. Sumner, 688 F.2d 1294, 1295 (9th 11 Cir. 1982); Johnstone v. Wolff, 582 F. Supp. 455, 458 (D. Nev. 1984). 12 13 B. Grounds One and Two 1. Ground One 14 Ground One of the First Amended Petition (“FAP”) is entitled, “Crisci’s guilty pleas were not 15 entered knowingly, intelligently, or voluntarily in violation of his right to due process of law under the 16 Fifth and Fourteenth Amendments to the United States Constitution.” (First Am. Pet. 6:17–19, ECF No. 17 40). Petitioner alleges, “At the time he entered the guilty pleas, Crisci did not and could not understand 18 the nature of his pleas and consequences of his plea agreement.” (Id. 6:23–24). Part A of Ground One 19 discusses Petitioner’s psychological disorders and the anti-psychotic medications he took before and at 20 the time he entered his pleas on May 6, 2004, and May 13, 2004. (See id. 7). It also discusses 21 Petitioner’s impaired cognitive functioning, including his functional illiteracy and “borderline intellectual 22 range” or “borderline mental retardation,” which included disorders affecting his reading, written 23 expression, and ability to do mathematics. (Id. 7–8). The FAP alleges that, given Petitioner’s significant 24 learning disabilities, substantial intervention was required by his defense counsel to ensure that he 25 understood the nature and dynamics of court proceedings. (See id. 8). Part B of Ground One alleges, 26 7 1 “Crisci did not receive any substantial assistance from his attorney [Steve Sexton] when he entered his 2 plea.” (Id. 8:20–21). 3 The Court has reviewed the FAP, along with the FTS filed in the Nevada Supreme Court. (See 4 FTS, Dec. 15, 2006, ECF No. 26-6, at 23). In the FTS, both issues on appeal concerned whether trial 5 counsel was effective. (See id. 6, ECF No. 26-6, at 28). The FTS argued the following issues: 6 1. Whether the district court erred in finding trial counsel Sexton effective when encouraging Crisci to enter guilty pleas when he was under the influence of inconsistent medications, drooling and slobbering, and “following his legal representative?” 2. Whether the district court erred in finding trial counsel Sexton effective when he knew about Crisci’s defenses of insanity, alibi, and good character and insisted upon guilty pleas and trial counsel Broili effective when he was hired to withdraw his guilty pleas and proceeded with sentencing, despite knowing that Crisci had viable defenses of insanity, duress, alibi, and good character. 7 8 9 10 11 (Id.). Although the FTS includes the same or similar facts alleged in Ground One of the FAP, the due 12 process claim is unexhausted because Petitioner did not present any due process claim to the Nevada 13 Supreme Court, but only ineffective assistance claims. Due process is a different legal theory from 14 ineffective assistance of counsel, and it has therefore not been exhausted. See Bland, 20 F.3d at 1473. 15 2. Ground Two 16 Respondents argue that Ground Two of the amended federal petition is premised on unexhausted 17 arguments. In Ground Two of the amended petition filed in this Court, petitioner alleges that: “Defense 18 counsel was ineffective because he induced Crisci to enter a plea that was not knowing, voluntary and 19 intelligent. Because of this unprofessional error, Crisci is imprisoned in violation of his right to the 20 effective assistance of counsel under the Fifth and Fourteenth Amendments.” (First Am. Pet. 11). 21 Petitioner incorporates the facts set forth in Ground One, which are discussed herein, supra. Petitioner 22 asserts that attorney Sexton “(a) failed to properly investigate the scope of his client’s mental limitations 23 and deficiencies, (b) failed to ensure that Crisci understood the terms of the plea and the nature of the 24 plea agreement; and (c) failed to make necessary accommodations regarding Crisci’s borderline 25 intellectual functioning and mental illness to ensure that his plea would be valid.” (Id.). Petitioner asserts 26 8 1 that Sexton’s participation in and inducement of an invalid plea constituted deficient performance and 2 ineffective assistance of counsel that could not have been excused by any valid strategic or tactical reason. 3 (Id.). Respondents argue that Petitioner did not exhaust these arguments in state court. 4 As noted, one of the issues on appeal in the FTS was “[w]hether the district court erred in finding 5 trial counsel Sexton effective when encouraging Crisci to enter guilty pleas when he was under the 6 influence of inconsistent medications, drooling and slobbering, and ‘following his legal representative?’” 7 Petitioner argued that Sexton was ineffective for encouraging him to enter guilty pleas, despite his 8 inability to understand them. Petitioner cited relevant portions of the state court record and cited to the 9 applicable federal case law, including Strickland v. Washington, 466 U.S. 688 (1984) and Hill v. 10 Lockhart, 474 U.S. 52 (1984). The Nevada Supreme Court was fairly presented with the issues raised 11 in Ground Two of the FAP. The Court therefore finds that Ground Two is exhausted, and Petitioner may 12 proceed thereon. 13 C. 14 Respondents argue that Exhibit 119 to the amended petition, (see Dr. Bittker Report, Dec. 15, 15 2004, ECF No. 41-4), the forensic psychiatric assessment prepared by Dr. Thomas E. Bittker, M.D., was 16 never presented to the Nevada Supreme Court, and that the inclusion of the report in Petitioner’s exhibits 17 renders the FAP unexhausted. Exhibit 119 to the FAP: Dr. Bittker’s Report 18 This Court has reviewed the record concerning the report. There is no dispute that Dr. Bittker’s 19 report was prepared during the course of criminal proceedings in state court, prior to Petitioner’s 20 sentencing. However, there is no indication that Dr. Bittker’s report was entered into evidence at any 21 time in the state court proceedings. The Bittker report itself is simply not found in the state court record. 22 In contrast, the psychiatric report of Dr. Sally Skewis was referred to as an exhibit in Petitioner’s FTS 23 to the Nevada Supreme Court. There is nothing in the FTS that substantively cites to the findings in Dr. 24 Bittker’s report or refers to the Bittker report as part of the appendix. 25 As such, this Court must treat Dr. Bittker’s report as new evidence. To expand the record under 26 Habeas Corpus Rule 7, a petitioner must satisfy the requirements of 28 U.S.C. § 2254(e)(2). Cooper9 1 Smith v. Palmateer, 397 F.3d 1236, 1241 (9th Cir. 2005). The conditions of § 2254(e)(2) generally 2 apply to petitioners seeking relief based on new evidence, even when they do not seek an evidentiary 3 hearing. Holland v. Jackson, 542 U.S. 649 (2004). Section 2254(e)(2) provides as follows: 4 5 6 7 8 9 If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that-(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and 10 11 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 12 28 U.S.C. § 2254(e)(2)(A)–(B) (emphasis added). “If there has been no lack of diligence at the relevant 13 stages in the state proceedings, the prisoner has not ‘failed to develop’ the facts under § 2254(e)(2)’s 14 opening clause, and he will be excused from showing compliance with the balance of the subsections’s 15 requirements.” Williams v. Taylor, 529 U.S. 420, 437 (2000). “Diligence for purposes of the opening 16 clause [of § 2254(e)(2)] depends on whether [Petitioner] made a reasonable attempt, in light of the 17 information available at the time, to investigate and pursue claims in state court[.]” Cooper-Smith, 397 18 F.3d at 1241 (quoting Williams, 529 U.S. at 435) (alterations in original). 19 With respect to Dr. Bittker’s report Petitioner asserts that he did not fail to develop the facts 20 under § 2254(e)(2)’s opening clause and therefore need not make a showing in compliance with the 21 subsection’s requirements. The Court rejects Petitioner’s argument that Dr. Bittker’s report is not 22 subject to the requirements of § 2254(e)(2). “Diligence” for the purposes of the opening clause of § 23 2254(e)(2) depends on whether the petitioner made a reasonable attempt, in light of the information 24 available at the time, to investigate and pursue claims in state court. Cooper-Smith, 397 F.3d at 1241. 25 Petitioner has not shown that he or his counsel actually presented Dr. Bittker’s report during state court 26 10 1 proceedings, and particularly, to the Nevada Supreme Court. Petitioner does not explain why the report 2 was not properly entered into evidence in state court or that its omission could not have been timely 3 discovered through the exercise of due diligence and presented to the state courts. Without prior 4 presentation to the Nevada Supreme Court, this Court will not consider Dr. Bittker’s psychiatric report 5 when ruling on the merits of the FAP. 6 D. 7 A federal court may not entertain a habeas corpus petition unless the petitioner has exhausted 8 available and adequate state court remedies with respect to all claims in the petition. Rose v. Lundy, 455 9 U.S. 509, 510 (1982). A “mixed” petition containing both exhausted and unexhausted claims is subject 10 to dismissal. Id. Here, the Court finds that the due process claim of Ground One is unexhausted. 11 Because the Court finds that the petition is a mixed petition, petitioner has several options: 12 Petitioner’s Options Regarding Unexhausted Claim 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claims in his federal habeas petition, and proceed only on the exhausted claims; 2. He may return to state court to exhaust his unexhausted claims, in which case his federal habeas petition will be denied without prejudice; or 3. He may file a motion asking this Court to stay and abey his exhausted federal habeas claims while he returns to state court to exhaust his unexhausted claims. 13 14 15 16 See Rose, 455 U.S. at 510; Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315 F.3d 1063 (9th 17 Cir. 2002); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). 18 Petitioner’s failure to choose any of the three options listed above, or to seek other appropriate 19 relief from this Court, will result in his federal habeas corpus petition being dismissed. Petitioner is 20 advised to familiarize himself with the limitations periods for filing federal habeas corpus petitions 21 contained in 28 U.S.C. § 2244(d), as those limitations periods may have a direct and substantial effect 22 on whatever choice he makes regarding his petition. 23 CONCLUSION 24 IT IS THEREFORE ORDERED that Respondents’ Motion to Dismiss (ECF No. 44) on 25 grounds of non-exhaustion is GRANTED in part, and DENIED in part, as follows: 26 11 1 1. Ground One of the FAP is not exhausted. 2 2. Ground Two of the FAP is exhausted. 3 3. Dr. Bittker’s psychiatric report was not presented to the Nevada Supreme Court, and as 4 such, is precluded from consideration on the merits. 5 IT IS FURTHER ORDERED that Petitioner shall have twenty (20) days to either: (1) inform 6 this Court in a sworn declaration that he wishes to formally and forever abandon the unexhausted ground 7 for relief in the FAP and proceed on the exhausted grounds; (2) inform this Court in a sworn declaration 8 that he wishes to dismiss this FAP without prejudice in order to return to state court to exhaust his 9 unexhausted claim; OR (3) file a motion for a stay and abeyance, asking the Court to hold his exhausted 10 claims in abeyance while he returns to state court to exhaust his unexhausted claims. If Petitioner 11 chooses to file a motion for a stay and abeyance, or seek other appropriate relief, Respondents may 12 respond to such motion as provided in Local Rule 7-2. 13 IT IS FURTHER ORDERED that if Petitioner elects to abandon his unexhausted grounds, 14 Respondents shall have thirty (30) days from the date Petitioner serves his declaration of abandonment 15 in which to file an answer to Petitioner’s remaining grounds for relief. The answer shall contain all 16 substantive and procedural arguments as to all surviving grounds of the FAP and shall comply with Rule 17 5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. § 2254. 18 19 20 21 22 IT IS FURTHER ORDERED that Petitioner shall have thirty (30) days following service of Respondents’ answer in which to file a reply. IT IS FURTHER ORDERED that if Petitioner fails to respond to this order within the time permitted, this case may be dismissed. DATED this 28th day of September, 2010. 23 24 UNITED STATES DISTRICT JUDGE 25 26 12