Holmes v. Nevada Department of Corrections

• Court: District Court, D. Nevada
• Decided: July 15, 2022
• Docket: 3:21-cv-00364
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 KEVIN RAY HOLMES, Case No. 3:21-cv-00364-MMD-CSD

7 Petitioner, ORDER v. 8 NEVADA DEPARTMENT OF 9 CORRECTIONS, et al.,

10 Respondents.

11 12 I. SUMMARY 13 This habeas matter is before the Court on Respondents’ motion to dismiss. (ECF 14 No. 11 (“Respondents’ Motion”).) Also before the Court is Petitioner Kevin Ray Holmes’s 15 motion for appointment of counsel. (ECF No. 16 (“Holmes’s Motion”).) For the reasons 16 discussed below, Respondents’ Motion is granted, in part, and Holmes’s Motion is denied. 17 II. BACKGROUND 18 Holmes challenges a conviction and sentence imposed by the Eighth Judicial 19 District Court for Clark County. See State of Nevada v. Kevin Ray Holmes, Case No. 20 C129708.1 A jury found Holmes guilty of murder of the first degree with use of a deadly 21 weapon (Count I) and attempt murder with use of a deadly weapon (Count II). (ECF No. 22 12-21.) Holmes appealed and the Nevada Supreme Court reversed and remanded 23 ordering a new trial. (ECF No. 12-36.) 24 Following re-trial, a jury found Holmes guilty of murder of the first degree with use 25 of a deadly weapon (Count I) and attempt murder with use of a deadly weapon (Count II). 26

27 1The Court takes judicial notice of the online docket records of the Eighth Judicial District Court and Nevada appellate courts. The docket records may be accessed by the 28 public online at: https://www.clarkcountycourts.us/Anonymous/default.aspx and 1 (ECF No. 13-10.) On December 7, 1999, the state district court entered a judgment of 2 conviction and sentenced Holmes to life with the possibility of parole plus an equal and 3 consecutive term of life with the possibility of parole for the use of a deadly weapon for 4 Count I as well as 20 years plus an equal and consecutive 20 years for use of the deadly 5 weapon for Count II, to run concurrently to Count I. (ECF No. 13-12.) 6 Holmes appealed and the Nevada Supreme Court affirmed his conviction. (ECF 7 No. 13-28.) In April 2019, Holmes filed a state post-conviction habeas petition alleging 8 that the Nevada Department of Corrections (“NDOC”) has not been properly crediting him 9 for statutory good and work time and/or mertirious award credits. (ECF No. 13-42.) The 10 state district court denied his petition and the Nevada Court of Appeals affirmed in part, 11 reversed in part, and remanded with instructions for the state district court to hold an 12 evidentiary hearing to determine the correct start date for Holmes’s sentence for the 13 attempted murder deadly weapon enhancement and to determine the correct amount of 14 credit that should apply to the maximum portion of that sentence. (ECF Nos. 13-45, 14- 15 17.) 16 On remand, the state district court conducted a telephonic evidentiary hearing 17 concluding that Holmes expired his attempted murder sentence on June 20, 2008, and 18 the attendant deadly weapon enhancement would begin on June 21, 2008. (ECF Nos. 19 14-19, 14-23 at 4-5.) Holmes discharged his underlying sentence for Count II and he was 20 granted parole on the underlying sentence for Count I in 2012. (ECF No. 14-23 at 4-5.) 21 Holmes then argued that NDOC continued to calculate his sentences incorrectly. (ECF 22 No. 14-29.) In October 2020, the state district court found Holmes received the relief as 23 required by the Nevada Court of Appeals Order. (ECF No. 14-27.) Holmes appealed and 24 the Nevada Court of Appeals affirmed the state district court’s decision. (ECF No. 15-15.) 25 In December 2020, Holmes filed another state post-conviction habeas petition. 26 (ECF No. 14-41.) On November 24, 2021, the Nevada Court of Appeals affirmed the state 27 district court’s denial of his second post-conviction habeas petition. (ECF No. 15-35.) In 28 August 2021, Holmes filed a third state post-conviction habeas petition. (ECF No. 15-21.) 1 On November 17, 2021, the state court denied his third post-conviction habeas petition. 2 (ECF No. 15-33.) Holmes appealed and as of the date of this order, his appeal remains 3 pending before the state appellate court. (ECF No. 15-36.) 4 On August 8, 2021, Holmes initiated this federal habeas corpus proceeding pro 5 se. (ECF No. 1.) Holmes raises seven grounds for relief including claims alleging, inter 6 alia, denial of due process and equal protection based on the state court’s sentencing 7 structure, failure to appoint counsel, and issuance of a new sentence structure without 8 defense counsel or Holmes’s physical presence in court. (ECF No. 6.) 9 III. MOTION TO DISMISS 10 Respondents move to dismiss Holmes’s petition under Nettles v. Grounds, 830 11 F.3d 922, 933-34 (9th Cir. 2016). (ECF No. 11 at 11-12.) They further argue that Grounds 12 1 through 6 should be dismissed as not cognizable in federal habeas and Grounds 5 and 13 6 are unexhausted. (Id. at 13-22.) In the alternative, Respondents argue that Grounds 5 14 and 6 may be denied on the merits. (Id. at 22-23.) 15 A. Cognizability 16 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) “places limitations 17 on a federal court's power to grant a state prisoner's federal habeas petition.” Hurles v. 18 Ryan, 752 F.3d 768, 777 (9th Cir. 2014) (citing Cullen v. Pinholster, 563 U.S. 170, 181 19 (2011)). When conducting habeas review, a federal court is limited to deciding whether a 20 conviction violates the Constitution, laws, or treaties of the United States. 28 U.S.C. § 21 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Unless an issue of federal 22 constitutional or statutory law is implicated by the facts presented, the claim is 23 not cognizable in federal habeas. McGuire, 502 U.S. at 68. 24 Federal habeas relief is unavailable “for errors of state law.” Lewis v. Jeffers, 497 25 U.S. 764, 780 (1990). A state’s interpretation of its own laws or rules provides no basis 26 for federal habeas relief because no federal question arises. McGuire, 502 U.S. at 67-68 27 (federal courts may not reexamine state court decisions on state law issues). A petitioner 28 may not transform a state–law issue into a federal one merely by asserting a violation of 1 due process. Langford v. Day, 110 F.3d 1380, 1381 (9th Cir. 1996). See also Lacy v. 2 Lewis, 123 F. Supp. 2d 533, 551 (C.D. Cal. 2000) (“Merely adding the phrase ‘due 3 process’ to state law claims does not transform those claims into federal claims; rather, 4 they remain state law claims ‘dressed up’ as federal due process claims.”); Nelson v. 5 Biter, 33 F. Supp. 3d 1173, 1178 (C.D. Cal. 2014) (same). Generally, matters relating to 6 state sentencing are not cognizable on federal habeas review. Christian v. Rhode, 41 7 F.3d 461, 469 (9th Cir. 1997) (finding state court’s misapplication of state sentencing laws 8 does not violate due process to justify federal habeas relief unless petition can show 9 “fundamental unfairness”); Miller v. Vasquez, 868 F.2d 1116, 1118-19 (9th Cir. 1989) 10 (holding that question of whether a prior conviction qualifies for sentence enhancement 11 under California law is not cognizable federal habeas claim). 12 1. Challenges to Sentencing (Grounds 1-6) 13 Holmes’s claims challenging his sentencing are not cognizable in this federal 14 habeas action. Although Holmes refers to his constitutional rights to due process and 15 equal protection of the laws, and the constitutional protection against ex post facto laws, 16 his claims present no federal question as they plainly hinge on the application or 17 interpretation of state sentencing law. See Swarthout v. Cooke, 562 U.S. 216, 220-22 18 (2011) (noting that the Supreme Court has “long recognized that a mere error of state law 19 is not a denial of due process”). The Nevada courts rejected his arguments on state law 20 grounds. Following remand and telephonic evidentiary hearing, the Nevada Court of 21 Appeals affirmed the state district court’s decision as follows: 22 On appeal, this court largely affirmed the district court’s order but reversed its conclusion that NDOC did not err when it failed to run the attempted 23 murder DWE sentence beginning from when Holmes expired his attempted murder sentence. This court remanded Holmes’ case to the district court to 24 conduct an evidentiary hearing to determine the correct start date for the attempted murder DWE sentence. See id. The district court conducted a 25 telephonic evidentiary hearing and concluded that Holmes expired his attempted murder sentence on June 20, 2008, and the attendant DWE 26 sentence should begin on June 21, 2008. Holmes has not demonstrated that the district court exceeded this court’s previous order. We therefore 27 conclude he is not entitlted to relief on this claim.

28 Second, Holmes claims the district court’s order following remand 1 of punishment, and the district court did so without ensuring Holmes was represented by counsel or was physically present. The district court’s order 2 following remand merely brought NDOC’s structure of Holmes’ sentence in line with the sentences pronounced in Holmes’ judgment of conviction. It 3 did not alter the sentences imposed in the judgment of conviction or increase his punishment. Further, Holmes was not entitlted to counsel at 4 such proceeding. See Brown v. McDaniel, 130 Nev. 565, 569, 331 P.3d 867, 870 (2014) (“[T]here is no constitutional or statutory right to the 5 assistance of counsel in noncapital post-conviciton proceedings. . . .”) And Holmes does not demonstrate that holding the hearing telephonically was 6 error or, if it was, that it affected his substantial rights, see NRS 178.598 (“Any error, defect, irregularity or variance which does not affect substantial 7 rights shall be disregarded.”). We therefore conclude he is not entitled to relief on this claim. 8 Third, Holmes contends his constitutional rights were violated when 9 the district court failed to adjust the start date of his murder DWE sentence to match that of the attempted murder DWE sentence. Holmes was not 10 paroled from his murder sentence to its attendant DWE sentence until 2012. Accordingly, the DWE sentence could not have started in 2008. See 1991 11 Nev. Stat., ch. 403, § 6, at 1059 (providing a deadly weapon enhancement runs consecutively to the sentence imposed for the substantive offense). 12 We therefore conclude he is not entitled to relief on this claim.

13 Fourth, Holmes contends the attempted murder DWE sentence is the controlling sentence because he spent more time serving that sentence 14 than he spent serving the murder DWE sentence. This court previously held that the murder sentence is controlling, see Holmes v. Nev. Dep’t of 15 Corrections, Docket No. 78878-COA (Order affirming in Part, Reversing in Part and Remanding, July 28, 2020), and that holding is the law of the case. 16 See Hall v. State, 91 Nev. 314, 315, 535 P.2d 797, 798 (1975) (“The law of a first appeal is the law of the case on all subsequent appeals in which the 17 facts are substantially the same.”) We therefore conclude he is not entitled to relif on this claim. 18 Finally, Holmes contends he has been denied requested documents 19 necessary to the crafting of a meaningful appeal. Holmes does not identify the documents he requested and was denied, and he does not explain how 20 those documents prevented a meaningful appeal. Further, he does not specify any relief he is seeking. We therefore conclude Holmes is not 21 entitled to relief on this claim. 22 (ECF No. 15-15.) (footnotes omitted.) This ruling, by a state court on matters of state law, 23 is beyond the scope of this federal habeas proceeding. See Estelle, 502 U.S. at 68; Lewis, 24 497 U.S. at 780. 25 In addition, looking at the possible effect the alleged errors relating to the 26 calculation of Holmes’s sentence, his claims are not cognizable because success on the 27 merits of his claims would not necessarily lead to immediate or speedier release from 28 confinement. See Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016). Habeas relief is 1 not available for “probabilistic claims,” i.e., where success on the claims “could potentially 2 affect the duration of confinement” or is “likely to accelerate the prisoner’s eligibility for 3 parole.” Id. at 933-34 (quotation omitted.) Here, if Holmes were to succeed on the claims 4 at issue, it would mean an earlier parole hearing. Holmes’s response argues that “but for 5 the actions of the respondents [Holmes] would have been considered for parole release 6 in 2018 rather than later in 2022.” (ECF No. 19 at 12.) An earlier parole hearing, however, 7 will not necessarily lead to a petitioner’s immediate or speedier release because the 8 parole board has the authority and discretion to grant or deny parole. See Wydeven v. 9 Warden, Lovelock Corr. Ctr., 238 P.3d 867 (Nev. 2008) (citing NRS § 213.1099(2) (“The 10 decision of whether or not to grant parole lies within the discretion of the parole board and 11 the creation of standards does not restrict the parole board’s discretion to grant or deny 12 parole.”)). Because success on Holmes’s claims would not necessarily lead to his 13 immediate or speedier release, they do not fall in the “core” of habeas. See, e.g., Gordon 14 v. Premo, 757 F. App’x 627, 628 (9th Cir. 2019). Accordingly, Grounds 1, 2, 3, and the 15 portion of Grounds 4, 5, and 6 alleging constitutional violations related to sentencing are 16 dismissed as noncognizable. 17 2. Denail of Appointment of Counsel and Presence at Evidentiary 18 Hearing (Ground 4) 19 To the extent that Holmes alleges in Ground 4 that the trial court abused its 20 discretion in violation of his constitutional rights for failure to appoint him counsel during 21 the telephonic evidentiary hearing, he nonetheless fails to raise a cognizable federal 22 habeas claim. (ECF No. 6 at 9.) In Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), the 23 Supreme Court held that the due process clause of the Fourteenth Amendment did not 24 mandate the appointment of counsel for indigent defendants during post-conviction 25 proceedings. See also Coleman v. Thompson, 501 U.S. 722, 751-53 (1991). Accordingly, 26 Holmes fails to set forth a cognizable federal habeas claim in Ground 4 to the extent that 27 he alleges he was denied constitutional right to due process of law and right to be 28 represented by counsel when the state court did not appoint counsel during the telephonic 1 evidentiary hearing in his post-conviction proceeding. 2 To the extent that Holmes alleges that the trial court abused its discretion in 3 violation of his constitutional rights for conducting the evidentiary hearing without 4 Holmes’s physical presence at the hearing, the Court declines to dismiss this claim as 5 noncognizable in federal habeas. A defendant has a due process right to be personally 6 present in judicial proceedings “whenever his presence has a relation, reasonably 7 substantial, to the fulness of his opportunity to defend against the charge.” Kentucky v. 8 Stincer, 482 U.S. 730, 745 (1987). The defendant’s “privilege of presence is not 9 guaranteed when presence would be useless, or the benefit but a show, [but] due process 10 clearly requires that a defendant be allowed to be present to the extent that a fair and just 11 hearing would be thwarted by his absence.” Id. When there is no indication the defendant 12 could have done or gained anything had he attended the hearing, there is no due process 13 violation. See United States v. Gagnon, 470 U.S. 522, 527 (1985) (per curiam). The Court, 14 however, notes that Holmes alleges that he was not physically present for the hearing 15 and the record demonstrates that the state court ordered that Holmes be available 16 telephonically for the hearing. (See ECF No. 14-19.) The Court, nonetheless, denies 17 Respondents’ motion to dismiss Ground 4 as noncognizable to the extent Holmes alleges 18 a violation of his due process rights because the state court conducted the evidentiary 19 hearing without Holmes’s physical presence at the hearing. 20 3. Denial of Hearing Transcript (Ground 7) 21 In Ground 7, Holmes alleges he was denied transcripts of a district court hearing, 22 which were necessary to filing a meaningful appeal. (ECF No. 6 at 15.) Respondents 23 argue that Holmes does not raise a cognizable federal claim in Ground 7. (ECF No. 11 at 24 20.) Although Respondents assert that Holmes’s request for transcripts was untimely and 25 that the telephonic hearing may not have been recorded (ECF No. 20 at 11), they do not, 26 however, demonstrate that Holmes fails to assert a cognizable claim for federal habeas 27 relief. If a state creates a system for appellate review as an integral part of the system for 28 finally adjudicating the guilt of a defendant, the procedures must comport with demands 1 of due process and equal protection. See Evitts v. Lucey, 469 U.S. 387, 393 (1985). The 2 failure to provide a criminal defendant with a transcript of the trial court proceedings which 3 effectively denies him his right to a timely appeal may deprive him of his constitutional 4 right to due process of law. See Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989) 5 (finding state’s failure to provide full record of trial may violate defendant’s due process 6 rights and form basis for federal habeas corpus relief). A habeas petition must establish 7 prejudice from lack of recordation to be entitled to habeas corpus relief. See id. at 649. 8 Accordingly, Holmes asserts a cognizable claim for relief and Respondents’ motion to 9 dismiss Ground 7 is denied. 10 B. Exhaustion 11 A state prisoner first must exhaust state court remedies on a habeas claim before 12 presenting that claim to the federal courts. 28 U.S.C. § 2254(b)(1)(A). This exhaustion 13 requirement ensures that the state courts, as a matter of comity, will have the first 14 opportunity to address and correct alleged violations of federal constitutional guarantees. 15 Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). “A petitioner has exhausted his 16 federal claims when he has fully and fairly presented them to the state courts.” Woods v. 17 Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 18 844–45 (1999). To satisfy the exhaustion requirement, a claim must have been raised 19 through one complete round of either direct appeal or collateral proceedings to the highest 20 state court level of review available. See O’Sullivan, 526 U.S. at 844-45; Peterson v. 21 Lampert, 319 F.3d 1153, 1156 (9th Cir. 2003) (en banc). A properly exhausted claim 22 “‘must include reference to a specific federal constitutional guarantee, as well as a 23 statement of the facts that entitle the petitioner to relief.’” Woods, 764 F.3d at 1129 24 (quoting Gray v. Netherland, 518 U.S. 152, 162-63 (1996)); Castillo v. McFadden, 399 25 F.3d 993, 999 (9th Cir. 2005) (fair presentation requires both the operative facts and 26 federal legal theory upon which a claim is based). 27 A state appellate court decision on the merits of a claim of course exhausts the 28 claim. See, e.g., Comstock v. Humphries, 786 F.3d 701, 707 (9th Cir. 2015). “In the 1 exhaustion context, the Supreme Court has admonished lower courts that the complete 2 exhaustion requirement is not intended to ‘trap the unwary pro se prisoner’.” Davis v. 3 Silva, 511 F.3d 1005, 1009 n.4 (9th Cir. 2008) (quoting Slack v. McDaniel, 529 U.S. 473, 4 487 (2000) (rejecting argument that petitioner should be limited to claims in an initial 5 federal petition after returning to federal court from state exhaustion proceedings)). “More 6 generally, the Court has held pro se pleadings to a less stringent standard than briefs by 7 counsel and reads pro se pleadings generously, ‘however inartfully pleaded.’” Id. (quoting 8 Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)). 9 A claim is not exhausted unless the petitioner has presented to the state court the 10 same operative facts and legal theory upon which his federal habeas claim is based. 11 Bland v. California Dept. of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994). “A claim has 12 not been fairly presented in state court if new factual allegations either ‘fundamentally 13 alter the legal claim already considered by the state courts,’ or ‘place the case in a 14 significantly different and stronger evidentiary posture than it was when the state courts 15 considered it.’” Dickens v. Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014). 16 1. Ground 5 17 In Ground 5, Holmes alleges he was illegally detained in violation of the prohibition 18 on double jeopardy. (ECF No. 6 at 11.) Respondents argue that Holmes has not 19 exhausted his double jeopardy claim alleged in Ground 5. (ECF No. 11 at 22.) Holmes 20 argues that he asserted such a claim in his opening brief appealing the district court’s 21 denial of his post-conviction state habeas petition filed in April 2019. (ECF No. 19 at 38.) 22 The Court finds Holmes sufficiently raised his double jeopardy claim asserted in Ground 23 5 on appeal to the state appellate court to satisfy exhaustion, despite the state appellate 24 court’s failure to mention his claim in its opinion. (See ECF No. 136 at 21.) Accordingly, 25 the double jeopardy claim alleged in Ground 5 is exhausted. 26 2. Ground 6 27 In Ground 6, Holmes alleges that the state court approved a “new sentence 28 structure” in violation of the prohibition against double jeopardy. (ECF No. 6 at 13.) 1 Holmes did not present this claim to the state appellate courts, and therefore, Holmes’s 2 double jeopardy claim as alleged in Ground 6 is unexhausted. 3 IV. HOLMES’S OPTIONS REGARDING UNEXHAUSTED CLAIM 4 A federal court may not entertain a habeas petition unless the petitioner has 5 exhausted available and adequate state court remedies with respect to all claims in the 6 petition. See Rose v. Lundy, 455 U.S. 509, 510 (1982). A “mixed” petition containing both 7 exhausted and unexhausted claims is subject to dismissal. See id. In the instant case, 8 the Court concludes that the double jeopardy claim alleged in Ground 6 is unexhausted. 9 Because the petition contains unexhausted claims, Holmes has these options: 10 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claim in his federal habeas petition, and proceed only 11 on the exhausted claims;

12 2. He may return to state court to exhaust his unexhausted claims, in which case his federal habeas petition will be denied without 13 prejudice;2 or

14 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 15 unexhausted claims. 16 With respect to the third option, a district court has discretion to stay a petition that it may 17 validly consider on the merits. Rhines v. Weber, 544 U.S. 269, 276 (2005). The Rhines 18 Court stated: 19 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to present 20 his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s 21 failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion 22 if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas 23 corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”). 24 25 Id. at 277. 26 If Holmes wishes to ask for a stay, he must file a motion for stay and abeyance in 27 which he demonstrates good cause for his failure to exhaust his unexhausted claims in 28 1 state court and presents argument regarding the question of whether or not his 2 unexhausted claims are plainly meritless. Respondents would then be granted an 3 opportunity to respond, and Holmes to reply. Or Holmes may file a declaration voluntarily 4 abandoning his unexhausted claims, as described above. Holmes’s failure to choose any 5 of the three options listed above, or seek other appropriate relief from this court, will result 6 in his federal habeas petition being dismissed. Holmes is advised to familiarize himself 7 with the limitations periods for filing federal habeas petitions contained in 28 U.S.C. § 8 2244(d), as those limitations periods may have a direct and substantial effect on whatever 9 choice he makes regarding his petition. 10 V. MOTION FOR APPOINTMENT OF COUNSEL 11 Holmes again moves for appointment of counsel. (ECF No. 16.) Nothing in 12 Holmes’s renewed request for the appointment of counsel causes the Court to change its 13 decision that the appointment of counsel is unwarranted, as set forth in the Court’s prior 14 order denying Holmes’s request for the appointment of counsel. (ECF No. 5.) Accordingly, 15 Holmes’s renewed request for the appointment of counsel is denied. 16 VI. CONCLUSION 17 It is therefore ordered that Respondents’ motion to dismiss (ECF No. 11) is granted 18 in part as follows: 19 1. Grounds 1, 2, and 3 are dismissed as noncognizable. The portion of Grounds 20 4, 5, and 6 alleging due process and equal protection constitutional violations 21 related to sentencing are dismissed as noncognizable. 22 2. The portion of Ground 6 alleging a violation of the prohibition of double jeopardy 23 is unexhausted. 24 It is further ordered that Holmes shall have 30 days to: (1) inform this court in a 25 sworn declaration that he wishes to formally and forever abandon the unexhausted 26 ground for relief in his federal habeas petition and proceed on the exhausted grounds; 27 OR (2) inform this court in a sworn declaration that he wishes to dismiss this petition 28 without prejudice in order to return to state court to exhaust his unexhausted grounds; 1 || OR (3) file a motion for a stay and abeyance, asking this court to hold his exhausted 2 || grounds in abeyance while he returns to state court to exhaust his unexhausted grounds. 3 || If Holmes chooses to file a motion for a stay and abeyance, or seek other appropriate 4 || relief, respondents may respond to such motion as provided in Local Rule 7-2. Failure to 5 || timely comply with this order will result in the dismissal of Holmes’s mixed petition without 6 || further advanced notice. 7 It is further ordered that Holmes’s motion for appointment of counsel (ECF No. 16) 8 || is denied. 9 DATED THIS 15" Day of July 2022. _

1 MIRANDA M.DU 42 CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12