United States District Court, D. Nevada
PHILIP M. PRO, District Judge.
This represented habeas matter comes before the Court on Petitioner's motion (#56) to stay and motion (#58) for leave to file a fifth amended petition.
Petitioner Willie Ray Lewis challenges his 2006 Nevada state conviction, pursuant to a jury verdict, of five counts of sexual assault of a minor under sixteen years of age, three counts of lewdness with a minor under the age of fourteen, and one count of attempted sexual assault of a minor under sixteen years of age. Under the sentences imposed on the charges, the majority of which run concurrently, it appears that Petitioner first could be eligible for a parole outside an institution after a minimum of 24 years. Petitioner challenged his conviction on direct appeal and in two state post-conviction petitions.
This Court previously granted the then pro se Petitioner a stay to pursue a second state petition. The Court appointed counsel for Petitioner after he returned to federal court from the stay. In the present stay motion, the now represented Petitioner seeks a stay to return to state court to exhaust federal Ground 4(b) while seeking to file a fifth amended petition deleting unexhausted claims in Grounds 2 and 3.
Motion to Stay
Petitioner seeks a stay under Rhines v. Weber, 544 U.S. 269 (2005), to exhaust Ground 4(b). Petitioner alleges therein that he was denied effective assistance of trial counsel when counsel failed to interview the victims prior to trial.
In order to obtain a Rhines stay in order to return to the state courts to exhaust a claim, a petitioner must demonstrate that there was good cause for the failure to exhaust the claim, that the unexhausted claim is not plainly meritless, and that the petitioner has not engaged in intentionally dilatory litigation tactics. See 544 U.S. at 278.
As the Ninth Circuit recently emphasized in Blake v. Baker, 745 F.3d 977 (9th Cir. 2014), the precise contours of what constitutes "good cause" under Rhines remain to be fully developed in the jurisprudence:
There is little authority on what constitutes good cause to excuse a petitioner's failure to exhaust. In Rhines, the Supreme Court did not explain the standard with precision. See 544 U.S. at 275-78 , 125 S.Ct. 1528. The Court has since addressed the meaning of good cause in only one other case, recognizing in dicta that "[a] petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute good cause'" to excuse his failure to exhaust. Pace v. DiGuglielmo, 544 U.S. 408, 416, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (citing Rhines, 544 U.S. at 278, 125 S.Ct. 1528).
Similarly, our cases on the meaning of good cause under Rhines are also sparse. In Jackson v. Roe, 425 F.3d 654 (9th Cir.2005), we held that good cause does not require a showing of "extraordinary circumstances." Id. at 661-62. In Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), we held that a petitioner did not establish good cause simply by alleging that he was "under the impression" that his claim was exhausted. Id. at 1024. We explained that accepting as good cause the mere "lack of knowledge" that a claim was exhausted "would render stay-and-abey orders routine" because "virtually every habeas petitioner" represented by counsel could assert that he was unaware of his attorney's failure to exhaust. Id.
745 F.3d at 980-81.
Blake firmly establishes, however, that the good cause required under Rhines cannot be more demanding than the showing of cause required under the Supreme Court's recent decision in ...