United States District Court, D. Nevada
MIRANDA M. DU, District Judge.
This represented habeas matter comes before the Court on petitioner's motion to stay (dkt. no. 41), which seeks a stay for exhaustion in the state courts.
Petitioner Lance Reberger challenges his Nevada state conviction, pursuant to a jury verdict, of first-degree murder with the use of a deadly weapon, robbery with the use of a deadly weapon, and burglary.
Reberger challenged the conviction on direct appeal and on a first state post-conviction petition. Proceedings on the latter concluded with the issuance of the remittitur on the state post-conviction appeal on January 7, 2013.
On federal habeas review, the Court appointed counsel, noting the lengthy sentence structure, the potential complexity of the issues, and the substantial unexpired time remaining in the federal limitation period for appointed counsel to develop and present claims without limitation concerns.
On January 6, 2014, petitioner filed a counseled first amended petition. Shortly thereafter, on January 15, 2014, petitioner filed the present motion to stay.
Petitioner seeks a stay in the main to exhaust Ground 1 of the first amended petition, with petitioner having filed a second state petition shortly after the federal first amended petition. In Ground 1, petitioner raises Brady-Napue claims alleging, inter alia, that the State failed to disclose that his co-defendant, Amber Harvey, testified for the State in exchange for a deal that eliminated a consecutive life sentence for her but then denied the existence of the deal in her testimony. Petitioner bases the claim in part on evidence developed by federal habeas counsel during investigation of the case.
Petitioner additionally is pursuing a number of claims of ineffective assistance of trial and appellate counsel that are alleged both in the federal first amended petition and in the second state petition. Petitioner asserts that he is doing so out of an abundance of caution to eliminate any question as to whether all claims as presented in the first amended petition have been exhausted on state post-conviction review.
Petitioner seeks a stay under Rhines v. Weber, 544 U.S. 269 (2005), to exhaust Ground 1. In order to obtain a Rhines stay 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.
A. Good Cause
As the Ninth Circuit recently emphasized in Blake v. Baker, 745 F.3d 977 (9th Cir. 2014), the contours of what constitutes "good cause" under Rhines are not fully developed:
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. ...