1 2 3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA 5 * * * 6 ABRAHAM AUSTIN, Case No. 3:19-cv-00346-MMD-CLB

7 Petitioner, ORDER

8 v. 9 WARDEN BILL GITTERE, et al., 10 Respondents. 11

12 13 Before the Court is pro se

habeas corpus Petitioner Abraham 14 Austin’s motion to stay. (ECF No. 29.) In July 2020, this Court dismissed some claims 15 from the petition and deemed three claims unexhausted. (ECF No. 28.) The Court 16 directed Petitioner to choose one of the following options: (1) submit a sworn declaration 17 voluntarily abandoning the unexhausted claims in his federal habeas petition, and 18 proceed only on the exhausted claims; (2) return to state court to exhaust his unexhausted 19 claims, in which case his federal habeas petition will be denied without prejudice;1 or (3) 20 file a motion asking this Court to stay and abey his exhausted federal habeas claims while 21 he returns to state court to exhaust his unexhausted claims. 22 Petitioner responded to the Court’s order with a filing entitled motion for stay and 23 abeyance. (ECF No. 29.) However, as Respondents point out, it is unclear which option 24 Petitioner wishes to pursue. (ECF No. 30.) He states: “I will proceed with my exhausted 25 arguments in federal court . . . and return to the state level with my unexhausted 26 arguments.” (ECF No. 29 at 1.) Petitioner also states that he chooses “option 3” but he 27 28 1 sets forth no arguments that he had good cause for failing to exhaust his claims and that 2 the unexhausted claims are not plainly meritless. 3 Accordingly, while the Court construes Petitioner’s filing as a motion for stay, the 4 motion is denied without prejudice. Petitioner must file a new response to this Court’s 5 order directing him to choose one of the three options. If he files a new motion to stay, he 6 must demonstrate good cause for his failure to exhaust his unexhausted claims in state 7 court and present argument regarding whether his unexhausted claims are plainly 8 meritless. See Rhines v. Weber,

, (2005).2 9 It is therefore ordered that Petitioner’s motion to stay (ECF No. 29) is denied 10 without prejudice. 11 It is further ordered that Petitioner has 30 days to either: (1) inform this Court in a 12 sworn declaration that he wishes to formally and forever abandon the unexhausted 13 grounds for relief in his federal habeas petition and proceed on the exhausted grounds; 14 or (2) inform this Court in a sworn declaration that he wishes to dismiss this petition 15 without prejudice in order to return to state court to exhaust his unexhausted grounds; or 16 (3) file a motion for a stay and abeyance, asking this Court to hold his exhausted grounds 17 in abeyance while he returns to state court to exhaust his unexhausted grounds. If 18 Petitioner chooses to file a motion for a stay and abeyance, or seek other appropriate 19 relief, Respondents may respond to such motion as provided in Local Rule 7-2. 20 It is further ordered that if Petitioner elects to abandon his unexhausted grounds, 21 Respondents will have 30 days from the date Petitioner serves his declaration of 22 abandonment in which to file an answer to Petitioner’s remaining grounds for relief. The 23 answer should contain all substantive and procedural arguments as to all surviving 24 grounds of the petition and comply with Rule 5 of the Rules Governing Proceedings in the 25 United States District Courts under

. 26

27 2The Court notes that Petitioner must choose one of the three options the Court has described. Pursuant to Rhines,

, this Court cannot adjudicate a mixed 28 1 It is further ordered that Petitioner has 30 days following service of Respondents’ 2 || answer in which to file a reply. 3 lt is further ordered that if Petitioner fails to respond to this Order within the time 4 || permitted, this case may be dismissed. 5 DATED THIS 22" Day of February 2021. 6 / ( L ~) 7 MIRA DA M. DU 3 CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28