Geronimo Gutierrez v. Lorie Davis, Director , 706 F. App'x 204 ( 2017 )

Case: 16-70028 Document: 00514273588 Page: 1 Date Filed: 12/14/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-70028
United States Court of Appeals
Fifth Circuit
FILED
GERONIMO RENE GUTIERREZ, December 14, 2017
Lyle W. Cayce
Petitioner - Appellant Clerk
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:09-CV-543
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
On August 30, 2017, we granted Appellant’s motion to stay proceedings
in order to allow him to pursue an Atkins claim in state court in light of the
Supreme Court’s decision in Moore v. Texas, 137 S. Ct. 1039 (2017). Because
we granted Appellant’s motion based on his Atkins argument, we had no need
to determine whether a stay was warranted pending the Supreme Court’s
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-70028 Document: 00514273588 Page: 2 Date Filed: 12/14/2017
No. 16-70028
decision in Wilson v. Sellers, No. 16-6855, 2017 WL 737820 (S. Ct. Feb. 27,
2017). We again decline to reach the merits of Appellant’s Sellers argument.
However, we granted a stay premised on Appellant’s statement that he
would promptly file his Atkins claim within ninety days of the Court’s stay
order. Appellant failed to do so, instead filing a “status update” informing the
court that he requires until February 26, 2018, to do so. We treat Appellant’s
status update as a motion for extension of time to file and, finding good cause,
GRANT that motion.
IT IS ORDERED that Appellant shall have until February 26, 2018, to
file his new Atkins claim.
IT IS FURTHER ORDERED that Appellee’s motion for clarification,
ECF No. 61, is DENIED as moot.
2