Nelson v. Robertson

• Court: District Court, N.D. California
• Decided: September 30, 2022
• Docket: 3:19-cv-08057
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM LLOYD NELSON, Case No. 19-cv-08057-EMC

8 Petitioner, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PETITIONER’S MOTION FOR RECONSIDERATION, 10 J. M. ROBERTSON, AND REQUIRING AN ELECTION FROM PETITIONER 11 Respondent. Docket No. 41 12 13 14 I. INTRODUCTION 15 William Lloyd Nelson filed this pro se action for a writ of habeas corpus under 28 U.S.C. 16 § 2254. Respondent moved to dismiss for, inter alia, failure to exhaust all claims, Docket No. 25; 17 Mr. Nelson filed a “traverse” which the Court construed as an opposition to Respondent’s motion, 18 Docket No. 30; 1 and Respondent filed a reply, Docket No. 34. The Court found that Mr. Nelson 19 had filed a mixed petition of exhausted and unexhausted claims, granted in part and denied in part 20 Respondent’s dismissal motion, and ordered Mr. Nelson to elect how to proceed. Docket No 38. 21 Mr. Nelson filed a motion seeking reconsideration of the Court’s order, arguing that he in 22 fact exhausted all claims. Docket No. 41 (“motion for reconsideration” or “Recon Motion”). For 23 the reasons given below, the Court GRANTS in PART and DENIES in PART Mr. Nelson’s 24 motion for reconsideration. 25 The Court suspects, but is not sure, that Mr. Nelson would like a Rhines stay. 26

27 1 Mr. Nelson appears to believe that the Court struck or otherwise ignored his filing. See Recon 1 Accordingly, the Court will give Mr. Nelson an additional opportunity to state his preference 2 clearly and unequivocally. 3 II. RELEVANT BACKGROUND 4 Mr. Nelson was convicted of attempting to murder a police officer engaged in the 5 performance of that officer’s duty, specifically the attempt to serve documents on Mr. Nelson in a 6 civil matter. See People v. Nelson, No. A144063, 2017 WL 3712440, at *1–2 (Cal. Ct. App. Aug. 7 29, 2017) (unpublished). On direct review, the California Court of Appeal affirmed Mr. Nelson’s 8 conviction. See id. Mr. Nelson sought review in the California Supreme Court, which denied his 9 request. See Docket No. 25-2. Mr. Nelson then collaterally attacked his conviction in state court. 10 His state habeas petitions were denied by Humboldt County Superior Court, Docket Nos. 25-3, 11 25-4; the California Court of Appeal, Docket Nos. 25-5, 25-6; and the California Supreme Court, 12 Docket No. 25-9. 13 Mr. Nelson filed a federal habeas petition in this Court, see Docket No. 1, which was 14 dismissed with leave to amend, see Docket No. 9. Petitioner filed an amended federal habeas 15 petition. See Docket No. 14 (“Amended Petition”). The Court reviewed the Amended Petition 16 pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United 17 States District Courts, and identified the following claims and subclaims:

18 (1) “The prosecution deliberately interfered with [Mr. Nelson’s] Sixth Amendment right to counsel by conspiring with appointed 19 defense counsel (‘Greg’) [a] to suppress the ballistics and forensic expert investigation, [b] to suppress material evidence, [c] to coerce 20 [him] not to testify, and [d] to compromise his cross-examination to reduce the prosecution’s burden to prove its case beyond a 21 reasonable doubt to no burden at all,” Docket No. 14 at 6; (2) the prosecutor, “in concert with defense counsel, knowingly elicited 22 perjured and false testimony from State’s witnesses” during the preliminary hearing and trial, id. at 31; (3) “the prosecution team 23 knowingly planted physical evidence at the crime scene and introduced it at” trial, id. at 37; (4) the prosecution failed to disclose 24 material impeachment evidence during trial; (5) the prosecution “discarded or failed to preserve evidence they knew could be 25 expected to play a significant [role in the] defense,” id. at 38; (6) trial counsel provided ineffective assistance by failing to file a 26 timely motion to suppress the evidence obtained in violation of Mr. Nelson’s Fourth Amendment rights; (7) trial counsel’s performance 27 “was so deficient that it amounted to a complete deprivation of meaningful opportunity to present a complete defense; (9) appellate 1 counsel provided ineffective assistance of counsel; and (10) Mr. Nelson was deprived of a fair trial because the trial judge was 2 biased. 3 Docket No. 16 (“Screening Order”) at 2-3. 4 Respondent moved to dismiss arguing, inter alia, that Mr. Nelson had failed to exhaust 5 certain claims. Docket No. 25. The Court found that Mr. Nelson had failed to exhaust Claims 1d, 6 2, 4 as to some evidence, 6, 7(c), and 8 as to some aspects of Mr. Nelson’s defense. 7 III. MOTION FOR RECONSIDERATION 8 A motion for leave to file a motion for reconsideration may be filed prior to the entry of a 9 final judgment in the case. Civ. L.R. 7-9(a). “The moving party must specifically show 10 reasonable diligence in bringing the motion” and one of the following circumstances: 11 (1) That at the time of the motion for leave, a material difference in fact or law exists from 12 that which was presented to the Court before entry of the interlocutory order for which 13 reconsideration is sought. The party also must show that in the exercise of reasonable 14 diligence the party applying for reconsideration did not know such fact or law at the 15 time of the interlocutory order; or 16 (2) The emergence of new material facts or a change of law occurring after the time of 17 such order; or 18 (3) A manifest failure by the Court to consider material facts or dispositive legal 19 arguments which were presented to the Court before such interlocutory order. 20 Civ. L.R. 7-9(b). A motion for reconsideration may be denied even where brought by a pro se 21 habeas petitioner, if the litigant does not bear his burden. See Ybarra v. McDaniel, 656 F.3d 984, 22 998 (9th Cir. 2011) (affirming district court’s denial of habeas petitioner’s motion for 23 reconsideration where petitioner’s evidence of exhaustion was not “newly discovered” because 24 petitioner was aware of evidence almost one year prior to the district court’s denial of the 25 petition). 26 Here, Mr. Nelson relies on Civil Local Rule 7-9(b)(3). Specifically, he argues that he fully 27 exhausted Claims 1d, 2, 4, 6, 7(c), and 8. See generally, Recon Mot. Mr. Nelson thus must show a 1 A. The Motion For Reconsideration Is Granted As To Claims 4(a), (b), (d)-(f), 6, and 8 2 With the additional information provided in Mr. Nelson’s motion for reconsideration, the 3 Court was able to discern that Mr. Nelson raised Claims 6, 8, and parts of Claim 4 to the 4 California Supreme Court, although these were raised as arguments supporting other grounds for 5 relief rather than as separate grounds for relief. 6 To exhaust, Mr. Nelson needed only to give the California Supreme Court a “full and fair 7 opportunity to resolve” these claims. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 8 Moreover, the Ninth Circuit repeatedly has instructed district courts to give liberal construction to 9 state-court habeas petitions filed by pro se petitioners. See Peterson v. Lampert, 319 F.3d 1153, 10 1159 (9th Cir. 2003) (suggesting pro se petitions should be read more liberally than counseled 11 petitions when evaluating whether a claim was exhausted); Sanders v. Ryder, 342 F.3d 991, 999 12 (9th Cir. 2003) (“Peterson makes clear that, for the purposes of exhaustion, pro se petitions are 13 held to a more lenient standard than counseled petitions.”); Kyzar v. Ryan, 780 F.3d 940, 947 (9th 14 Cir. 2015) (same, citing Peterson, 319 F.3d at 1159, and Sanders, 342 F.3d at 999). When given 15 the liberal construction due to pro se petitioners, it appears that Mr. Nelson made the California 16 Supreme Court aware of the constitutional issues presented by Claims 4(a), (b), (d)-(f), 6, and 8, 17 and gave that Court a sufficient opportunity to rectify those issues. See, e.g., Lounsbury v. 18 Thompson, 374 F.3d 785, 789 (9th Cir. 2004) (petitioner who limited final state habeas appeal to 19 procedural competency challenge made fair presentation to state courts of substantive competency 20 claim when: (1) substantive competency claim closely related to, and concerned same trial court 21 ruling as, concededly raised procedural competency claim; (2) under state supreme court rules, 22 court could have reached claim because it was raised in court of appeals; (3) text of petition for 23 review included claim; and (4) state supreme court could have discussed substantive competency 24 claim, had it granted review, in course of discussing harmless error with regard to raised 25 procedural competency claim). 26 In Claim 4, Mr. Nelson contends that “the prosecution failed to disclose material 27 impeachment evidence during trial,” Screening Order at 2, and specifically enumerated seven 1 these seven sub-claims were raised in grounds 1, 5, 11, 14, 17, 24, 26 , and 37-39 of his petition to 2 California Supreme Court. See Recon Mot. at 40-41. The Court has reviewed the grounds 3 presented to the California Supreme Court and concludes that, with liberal construction, Mr. 4 Nelson sufficiently exhausted Claims 4(a), (b), and (d)-(f), but did not exhaust Claim 4(c). 5 • Claim 4(a) contends that the prosecution failed to disclose material impeachment 6 evidence demonstrating attempted extortion by the prosecution. See Am. Pet. at 7 36. Liberally construed, an argument to this effect was made in support of ground 8 36 of the state petition, see Docket No. 25-11 at 104 (arguing the prosecution 9 “knew or should have known” that a draft probation report was a “flagrant attempt 10 to extort money from petitioner”),2 which otherwise argued that state officials 11 conspired against Mr. Nelson by fabricating a probation report, see id. at 102 12 (summarizing ground raised to California Supreme Court). 13 • Claim 4(b) contends that the prosecution failed to disclose material impeachment 14 evidence of “safety statements” by two police officers Am. Pet. at 36. Liberally 15 construed, an argument to this effect was made in support of ground 38, see Docket 16 No. 25-11 at 116 (arguing that the prosecution conspired with defense counsel to 17 suppress the fact that an officer “gave a safety statement”), which otherwise argued 18 that the prosecution “withheld and fabricated evidence,” and specifically that the 19 prosecution “staged an interview,” id. (summarizing ground raised to California 20 Supreme Court). 21 • Claim 4(c) contends that the prosecution failed to disclose material impeachment 22 evidence of letters, a deed, an escrow document, and bank records, which would 23 have showed the jury that Mr. Nelson had the legal right to be on his property. See 24 Am. Pet. at 36. In his motion for reconsideration, Mr. Nelson makes no attempt to 25 direct the Court to a location in the California Supreme Court petition where he 26

27 2 The petition presented to the California Supreme Court bears at least three different page 1 argued that the prosecution suppressed bank records, escrow documents, letters, or 2 a deed. See generally, Recon Mot. The Court also did not see a claim raised to the 3 California Supreme Court concerning Mr. Nelson’s right to be on the property. See 4 generally, Docket Nos. 25-9, 25-10, and 25-11. Even with liberal construction, 5 Claim 4(c) is unexhausted. 6 • Claim 4(d) contends that the prosecution failed to disclose material impeachment 7 evidence regarding the number of shots fired by police officers, bullet holes caused 8 by those shots, and the locations of the shells after the officers’ shots. Am. Pet. at 9 36. Liberally construed, an argument to this effect was made in support of ground 10 11, see Docket No. 25-10 at 147 (arguing the government failed to preserve 11 evidence related to bullet holes and trajectories, and discarded shell casings), which 12 otherwise argued the prosecution failed to collect and preserve evidence, see id. at 13 144 (summarizing ground raised to California Supreme Court); ground 14, see id. 14 at 170 (arguing that photographs of bullet holes and “a slug” were suppressed), 15 which otherwise argued Mr. Nelson was prevented from presenting a complete 16 defense, see id. at 167 (summarizing ground raised to California Supreme Court); 17 ground 17, see id. at 190 (arguing counsel lied about “the existence of [a] shell 18 locations ‘diagram’”), which otherwise argued that trial counsel was ineffective 19 because counsel lied during Marsden hearings, see id. at 189 (summarizing ground 20 raised to California Supreme Court); and ground 26, see Docket No 25-11 at 45 21 (arguing that defense counsel was ineffective for failing to retrieve “slugs” from 22 Mr. Nelson’s yard), which otherwise argued that “the perpetrators conspire[ed] 23 under color of state law against petitioner to murder petitioner and plant evidence 24 to cover up police misconduct,” id. at 39 (summarizing ground raised to California 25 Supreme Court). 26 • Claim 4(e) contends that the prosecution failed to disclose material impeachment 27 evidence of audio recordings and transcripts of interviews. Am. Pet. at 37. 1 see Docket No. 25-10 at 25 (arguing that interviews were not disclosed), which 2 otherwise argued that the Humboldt County Superior Court abused its discretion in 3 denying Mr. Nelson’s habeas petition, see id. at 6 (summarizing ground raised to 4 California Supreme Court); and in ground 5, see id. at 105 (arguing that audio 5 recordings of interviews were suppressed as a result of collusion), which otherwise 6 argued that petitioner’s Sixth Amendment rights were violated by his trial counsel’s 7 collusion with the prosecution, see id. at 98 (summarizing ground raised to 8 California Supreme Court). 9 • Claim 4(f) contends that the prosecution failed to disclose material impeachment 10 evidence of conflicts between police reports. Am. Pet. at 37. Liberally construed, 11 an argument to this effect was made in support of ground 37, see Docket No 25-11 12 at 114-15 (arguing that an officer made inconsistent statements to other officers), 13 which otherwise argued that Mr. Nelson was deprived of effective assistance of 14 counsel, see id. at 110 (summarizing ground raised to California Supreme Court); 15 and ground 38, see id. at 116 (arguing the prosecution “staged an interview” to 16 obtain a more favorable police report), which otherwise argued that the prosecution 17 “withheld and fabricated evidence,” id. (summarizing ground raised to California 18 Supreme Court). 19 Thus, the Court concludes that if the state petition is given liberal construction, Claims 4(a), (b), 20 and (d)-(f) are exhausted, but Claim 4(c) is unexhausted. 21 In Claim 6, Mr. Nelson contends that trial counsel was ineffective because trial counsel 22 failed to “file a timely suppression motion to suppress evidence obtained in violation of [Mr. 23 Nelson’s] Fourth Amendment rights.” Am. Pet. at 37. Mr. Nelson contends that the basis for 24 Claim 6 may be found in ground 13 of the petition to the California Supreme Court. Recon Mot. 25 at 24. In ground 13, Mr. Nelson argued, inter alia, that his trial counsel’s “refusals to file a 26 motion to suppress the prosecution’s fabricated evidence were likely the result of his collusion 27 with the prosecution.” Docket No. 25-10 at 157. Although the more natural reading of ground 13 1 correct that the underlying argument of this ground is the same as Claim 6: that trial counsel failed 2 to move to suppress evidence. See id. Liberally construing the state petition, the Court concludes 3 that Claim 6 was exhausted. 4 In Claim 8, Mr. Nelson contends that he “was deprived of any meaningful opportunity to 5 present a complete defense,” because of “the misconduct of trial counsel and the prosecution.” 6 Am. Pet. at 38. Mr. Nelson contends that Claim 8 was raised in ground 14 presented to the 7 California Supreme Court. See Recon Mot. at 28. Ground 14 did indeed argue that Mr. Nelson 8 was “denied ‘a meaningful opportunity to present a complete defense,’” Docket No. 25-10 at 167, 9 although he attributed this deprivation specifically to collusion between his defense counsel and 10 the prosecution rather than to general misconduct, see id. at 168. Liberally construing the state 11 petition, the Court concludes that Claim 8 was exhausted. 12 Although the Court reconsiders its earlier ruling as to Claims 4(a), 4(b), 4(d)-(f), 6, and 8, the 13 Court notes that this reconsideration is done in the interests of justice, and not because Mr. Nelson has 14 fulfilled his obligations under Civil Local Rule 7-9(b)(3). See Fed. R. Civ. P. 54(b) (“any order . . . 15 that adjudicates fewer than all the claims . . . does not end the action as to any of the claims or 16 parties and may be revised at any time before the entry of a judgment”); see also School Dist. No. 17 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (noting that, inter alia, an order may be 18 reconsidered if “the initial decision was manifestly unjust”). In his opposition to Respondent’s 19 dismissal motion, Mr. Nelson did not raise any arguments, or point to any place in the record, which 20 would have shown that these claims were exhausted. See Docket No. 30 at 11-12 (raising a general 21 argument about the purpose of exhaustion). He thus did not carry his burden to show that he had 22 exhausted state remedies. See Darr v. Burford, 339 U.S. 200, 218-19 (1950) (“petitioner has the 23 burden . . . of showing that other available remedies have been exhausted”), overruled on other 24 grounds, Fay v. Noia, 372 U.S. 391 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 25 1981) (affirming summary judgment for respondent because, although petitioner alleged he had 26 exhausted, “there is nothing in the record” to show it). Moreover, the verbose and disorganized 27 nature of the 700-page petition filed before the California Supreme Court impeded the Court’s 1 court. See, e.g., Recon Mot. at 40 (arguing that federal Claim 4 was raised in the California 2 Supreme Court petition at grounds 1, 4, 5, 11, 24, 26, or “are intertwined throughout” that 3 petition); see also Docket Nos. 25-9, 25-10, and 25-11 (700 pages filed with the California 4 Supreme Court, including hundreds of pages of handwritten argument, interspersed with dozens 5 of pages of transcripts and prison disciplinary records, and several dessert recipes). 6 The Court would be fully justified were it to deny Mr. Nelson’s motion for 7 reconsideration. See Ybarra, 656 F.3d at 998. Nonetheless, the motion is GRANTED IN PART 8 in the interests of justice because Mr. Nelson is a pro se litigant pursuing his liberty.3 9 Considering the additional information provided by Mr. Nelson, giving the state petition 10 the liberal construction due a pro se filing, and in the interests of justice, the Court reconsiders its 11 earlier order and concludes that Claims 4(a), (b), (d)-(f), 6, and 8 are exhausted. 12 B. The Motion For Reconsideration Is Denied As To Claims 1d, 2, 4(c), and 7(c) 13 The Court sees no reason to reconsider its prior conclusion that Mr. Nelson failed to exhaust 14 Claims 1d, 2, 4(c), and 7(c). Even with the extra argument presented in the motion for 15 reconsideration, Mr. Nelson fails to show that these claims were exhausted. 16 Mr. Nelson argues that federal Claim 1d was exhausted by ground 12 in his petition to the 17 California Supreme Court. See Recon Mot. at 45. However, ground 12 argues:

18 Petitioner[’]s incarceration is unlawful because he was deprived of his Fifth, Sixth, and Fourteenth Amendment rights under the United 19 States Constitution, and Article I Section 7 of the California Constitution, to due process resulting from being convicted, based 20 on an unreasonable determination of alleged evidence that was insufficient to support the essential elements of the alleged crime 21 beyond a reasonable doubt. 22 Docket No. 25-10 at 152. The ground raised in state court thus does not argue that a cross- 23 examination was compromised as a result of a conspiracy between the prosecution and defense 24 counsel. See id.; see also Screening Order at 2 25 3 Mr. Nelson would do well to remember this dispensation in future filings, before accusing the 26 Court of “intentional delay/harassment tactics,” Recon Mot. at 13; “conscientiously setting [Mr. Nelson] up to fail,” id. at 26; “team[ing] up with the AG,” id. at 27; being “incompetent,” id. at 28; 27 inflicting the “unreasonable burden” of a “steady flow of B.S. from this” Court upon Mr. Nelson, 1 Mr. Nelson argues that Claim 2 was exhausted by ground 29 in his petition to the 2 California Supreme Court. See Recon Mot. at 39. However, ground 29 argues:

3 Petitioner[’]s incarceration is unlawful because he was deprived of his Fifth, Sixth, and Fourteenth Amendment rights under the United 4 States Constitution, and Article I, Sections 7, and 15 of the California Constitution, and P.C. 1473, to due process of law as a 5 direct result of the prosecution[’]s deliberate, willful introduction of false evidence at petitioner[’]s June 9, 2014 preliminary hearing, and 6 the erroneous suppression of patently exculpatory evidence. 7 Docket No. 25-11 at 68. The ground raised to the California Supreme Court makes no mention of 8 a conspiracy between the prosecution and defense counsel to elicit false testimony, nor does it 9 make arguments about false testimony being used at trial. See id.; see also Screening Order at 2. 10 As noted above, Mr. Nelson does not point to any place in the petition to the California 11 Supreme Court which exhausted Claim 4(c). The Court therefore concludes this claim is unexhausted. 12 Mr. Nelson argues that Claim 7(c) was exhausted by ground 23 in his petition to the 13 California Supreme Court. See Recon Mot. at 43 (arguing that federal Claim 7(c) was exhausted 14 in state ground 23). The ground raised to the California Supreme Court argues that counsel was 15 ineffective at sentencing. See Docket 25-11 at 20. It does not argue that counsel was ineffective 16 at the stage of moving for a new trial. See id.; see also Screening Order at 2-3. 17 Because Mr. Nelson plainly has included unexhausted claims in his federal habeas petition, 18 the Court’s DENIES the motion for reconsideration as to Claims 1d, 2, 4(c), and 7(c). 19 IV. MR. NELSON MUST MAKE AN ELECTION 20 At several points in his motion for reconsideration, Mr. Nelson suggests that he would like 21 to be granted a Rhines stay so that he may exhaust his unexhausted claims. See Recon Mot. at 1, 22 44-47; see also Rhines v. Weber, 544 U.S. 269, 277 (2005) (allowing a court to stay a so-called 23 “mixed petition” of exhausted and unexhausted claims, so that a petitioner may return to state 24 court to fully exhaust). However, he also states that he would like this stay “[i]f, and only if, [he 25 is] left with no other choice.” Recon Mot. at 44. Moreover, in the conclusion of his motion for 26 reconsideration, Mr. Nelson argues that “this Court should dispense with requiring me to return to 27 State Court to redundantly exhaust claims” because “[r]equiring me to return to State Court under 1 genuine risk’s of impairing my ability altogather to to achieve resolution of my Constitutional 2 claims in federal Court.” Id. at 48 (errors in original). 3 As the Court explained in its prior order, Mr. Nelson has more than one choice; he has 4 three. See Docket No. 38 at 15-16. He may choose whether he wants to – 5 (1) dismiss the unexhausted claims and go forward in this action with only the exhausted 6 claims, or 7 (2) dismiss this action and return to state court to exhaust all claims before filing a new 8 federal petition presenting all of his claims, or 9 (3) file a motion for a stay of these proceedings while he exhausts his unexhausted claims 10 in the California Supreme Court. 11 Thus, if Mr. Nelson wishes to avoid any delay that may result from a return to state court, 12 he may select option 1 and dismiss the unexhausted claims. 13 Because it appears that Mr. Nelson misunderstood the options presented, the Court will 14 allow Mr. Nelson an additional opportunity to elect how to proceed. The Court advises Mr. 15 Nelson that his election should be brief and unambiguous. 16 V. CONCLUSION 17 Mr. Nelsons motion for reconsideration is GRANTED as to Claims 4(a), (b), (d)-(f), 6, and 18 8. The motion for reconsideration is DENIED as to Claims 1d, 2, 4(c), and 7(c). 19 No later than November 14, 2022, Mr. Nelson must file a notice in which he states 20 whether he chooses to 21 (1) dismiss this action and return to state court to exhaust all of his claims before returning 22 to federal court to present all of his claims in a new petition, or 23 (2) dismiss the unexhausted claims and go forward in this action with only Claims 1a-1c, 24 3, 4(a), (b), (d)-(f), 6, 7a-7b, and 8-10, or 25 (3) move for a stay of these proceedings while he exhausts his state court remedies for the 26 unexhausted claims. 27 If Mr. Nelson chooses Option (1) or Option (2), his filing need not be a long document; it 1 simply: “Petitioner chooses to proceed under option ___ provided in the Order Of Partial 2 Dismissal And Requiring Choice By Petitioner.” Mr. Nelson would have to insert a number in 3 place of the blank space to indicate which of the first two options he chooses. Alternatively, Mr. 4 Nelson may circle his choice on this page, sign next to that choice, and return this page to the 5 Court. 6 If Mr. Nelson chooses Option (3), then no later than November 14, 2022, Mr. Nelson must 7 file a motion for a stay in which he explains why he failed to exhaust his unexhausted claims in 8 state court before presenting them to this Court, that his claims are not meritless, and that he is not 9 intentionally delaying resolution of his constitutional claims. 10 If Mr. Nelson does not choose one of the three options by the deadline, the Court will 11 assume that Mr. Nelson has elected option (2) and will dismiss this action so that Mr. Nelson may 12 exhaust his claims in state court. No additional motions for reconsideration by Mr. Nelson will be 13 considered. 14 This order disposes of Docket No. 41. 15 16 IT IS SO ORDERED. 17 18 Dated: September 30, 2022 19 20 ______________________________________ EDWARD M. CHEN 21 United States District Judge 22 23 24 25 26 27