Garner v. Najera

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 CHARLES GARNER, Case No. 3:18-cv-00525-MMD-WGC

7 Petitioner, ORDER v. 8 STATE OF NEVADA, et al., 9 Respondents. 10 11 This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 12 2254 by Petitioner Charles Garner, an incarcerated person. On February 26, 2019, the 13 Court granted Petitioner’s motion for counsel and appointed the Federal Public Defender 14 (“FPD”) to represent Petitioner in this action. (ECF No. 11.) On March 28, 2019, the FPD 15 appeared on behalf of Petitioner. (ECF No. 14.) 16 On August 15, 2019, through the FPD, Petitioner contemporaneously filed a first- 17 amended petition, a motion for leave to file a second-amended petition, and a motion for 18 stay and abeyance (ECF Nos. 18, 19, 21). While Petitioner states that he timely filed his 19 state petition, he has filed this federal petition as a protective petition in order to ensure 20 that all known claims are preserved for federal review. See Pace v. DiGuglielmo, 544 U.S. 21 408, 416 (2005) (citing Rhines v. Weber, 544 U.S. 269, 278 (2005)). Respondents have 22 not opposed the motion to stay. Finally, the outcome in state court may impact his federal 23 claims. Good cause appearing, the motion to stay shall be granted. 24 It is therefore ordered that Petitioner’s motion to stay (ECF No. 19) is granted. 25 It is further ordered that Petitioner’s motion for leave to file a second-amended 26 petition (ECF No. 21) is granted. 27 It is further ordered that this action is stayed pending final resolution of Petitioner’s 1 It is further ordered that the grant of a stay is conditioned upon Petitioner returning 2 || to federal court with a motion to reopen the case within 45 days of the issuance of the 3 || remittitur by the Supreme Court of Nevada, at the conclusion of the state-court 4 || proceedings on the postconviction habeas petition. 5 It is further ordered that the Court’s scheduling order dated April 1, 2019 (ECF No. 6 || 20), is vacated. 7 It is further ordered that the Clerk shall administratively close this action, until such 8 || time as the Court grants a motion to reopen the matter. 9 It is further ordered that Petitioner's motion to extend time to file a first-amended 10 || petition (ECF No. 16) is granted nunc pro tunc. 11 It is further ordered that Respondents’ motion to extend time to file a responsive 12 || pleading (ECF No. 22) is denied as moot. 13 14 DATED THIS 21* day of October 2019. 15

17 ‘MIRANDA WM. 18 CHIEF UNITED STATES DISTRICT JUDGE

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