Walters v. Russell

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * * 6 KRISTIAN WALTERS, Case No. 3:21-cv-00405-MMD-WGC

7 Petitioner, v. ORDER 8

9 PERRY RUSSELL, et al.,

10 Respondents.

11 12 Petitioner Kristian Walters has filed an amended petition for writ of habeas corpus 13 in this proceeding. (ECF No. 10.) In reviewing the amended petition, the Court notes that 14 Walters has not completed state court exhaustion with respect to three amended claims, 15 Grounds 4, 5, and 6.1 (Id. at 10, 12, 14.) 16 A federal court may not grant habeas corpus relief on a claim not exhausted in 17 state court. See 28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of 18 federal-state comity, and is intended to allow state courts the initial opportunity to correct 19 constitutional deprivations. See Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust 20 a claim, a petitioner must fairly present the claim to the highest state court, and must give 21 that court the opportunity to address and resolve it. See Duncan v. Henry, 513 U.S. 364, 22 365 (1995) (per curiam); Keeney v. Tamayo Reyes, 504 U.S. 1, 10 (1992). 23 A federal petition containing unexhausted claims is subject to dismissal. See Rose 24 v. Lundy, 455 U.S. 509, 510 (1982). Rather than suffer dismissal, a petitioner may request 25 stay and abeyance. See Rhines v. Weber, 544 U.S. 269, 277 (2005). Under Rhines, a 26 1The Court bases this finding entirely on information provided by Walters and 27 1 || district court has discretion to stay a mixed petition to allow a petitioner time to present 2 || his or her unexhausted claims to state courts. 544 U.S. at 276. This Court will not grant a 3 || Rhines stay, however, unless “the petitioner had good cause for his failure to exhaust, his 4 || unexhausted claims are potentially meritorious, and there is no indication that the 5 || petitioner engaged in intentionally dilatory litigation tactics.” /d. at 278. The burden is on 6 || Walters to demonstrate he satisfies the criteria. See Jackson v. Roe, 425 F.3d 654, 662 7 || (9th Cir. 2005). 8 It is therefore ordered that Walters will have 30 days from the date of entry of this 9 || order to file a motion for stay and abeyance. Respondents will thereafter have 30 days to 10 || file a response, and Walters will then have 20 days to file a reply. 11 Alternatively, Walters may, within 30 days, inform this Court in a sworn declaration 12 || that he wishes to abandon the unexhausted claims and proceed on his remaining claims. 13 Failure to respond to this order within the time allowed may result in the dismissal 14 || of this action. 15 It is further ordered that Respondents’ motion for extension of time (ECF No. 9) to 16 || respond to Walters’ initial petition is denied as moot. The Court’s current scheduling order 17 || (ECF No. 5) is vacated and will be replaced as needed in a future order. 18 DATED THIS 30" Day of November 2021. 19 1 OL 20 MIRANDA M. DU 21 CHIEF UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28