United States District Court, D. Nevada
MONTRAIL D. SMITH, Petitioner,
TIMOTHY FILSON, et al., Respondents.
action is a petition for a writ of habeas corpus by Nevada
prisoner Montrail D. Smith. There are, before the court, a
motion to dismiss filed by the respondents, and a motion for
leave to conduct discovery, a motion for evidentiary hearing,
and a motion for stay filed by Smith. The court will grant
the motion for stay, and stay this action pending completion
of Smith's ongoing state-court habeas litigation. The
court will deny as moot, and without prejudice, the motion to
dismiss, motion for leave to conduct discovery, and motion
for evidentiary hearing.
was convicted, following a jury trial, in Nevada's Eighth
Judicial District Court of murder with use of a deadly
weapon, and he was sentenced to two consecutive terms of life
in prison with the possibility of parole after twenty years.
See Judgment of Conviction, Exhibit 25 (ECF No.
26-8). (The exhibits referred to in this order were filed by
Smith and are found in the record at ECF Nos. 25-29.)
appealed, but the Nevada Supreme Court ruled that his notice
of appeal was untimely, and dismissed the appeal for lack of
jurisdiction. See Order Dismissing Appeal, Exhibit
29 (ECF No. 26-12).
then pursued a state-court habeas petition. The state
district court denied that petition in a written order filed
on August 8, 2007. See Findings of Fat, Conclusions
of Law and Order, Exhibit 48 (ECF No. 27-6). Smith appealed,
and the Nevada Supreme Court affirmed on February 20, 2009.
See Order of Affirmance, Exhibit 59 (ECF No. 27-17).
December 14, 2009, Smith initiated a second state-court
habeas action. In a written order filed on June 18, 2013, the
state district court dismissed that action, ruling that it
was procedurally barred. See Findings of Fact,
Conclusions of Law and Order, Exhibit 78 (ECF No. 28-5).
Smith appealed, and the Nevada Supreme Court affirmed on
April 10, 2014. See Order of Affirmance, Exhibit 85
(ECF No. 29-2).
initiated this federal habeas corpus action, pro se,
on March 18, 2015. See Motion Seeking Permission
from the Court to File Habeas Petition (ECF No. 1). He
submitted his original petition for filing on April 1, 2015
(ECF No. 2-1). The petition was filed on May 26, 2015, after
the matter of payment of the filing fee was resolved.
See Petition for Writ of Habeas Corpus (ECF No. 10).
Counsel was appointed for Smith. See Order entered
May 26, 2015 (ECF No. 9). With counsel, Smith filed an
amended petition for writ of habeas corpus, currently his
operative petition, on April 11, 2016 (ECF No. 24).
filed their motion to dismiss on August 10, 2016 (ECF No.
35). In that motion, respondents contend that Smith's
petition is barred by the statute of limitations, that
certain of Smith's claims are unexhausted in state court,
and that certain of Smith's claims are barred by the
procedural default doctrine. On December 19, 2016, Smith
filed an opposition to the motion to dismiss (ECF No. 44),
his motion for leave to conduct discovery (ECF No. 47), and
his motion for evidentiary hearing (ECF No. 48). On December
20, 2016, Smith filed his motion for stay and abeyance (ECF
No. 50). On January 18, 2017, respondents filed a notice of
non-opposition to the motion for stay, along with an
opposition to the motion for leave to conduct discovery and
an opposition to the motion for evidentiary hearing (ECF No.
56). On January 26, 2017, respondents filed a reply in
support of their motion to dismiss (ECF No. 57). On February
7, 2017, Smith filed a reply in support of his motion for
evidentiary hearing (ECF No. 59), a reply in support of his
motion for leave to conduct discovery (ECF No. 60), and a
reply to respondents' non-opposition to his motion for
stay (ECF No. 61).
motion for stay, and also in a status report he filed on
March 14, 2017 (ECF No. 62), Smith states that he has
initiated a third state-court habeas action in Nevada's
Eighth Judicial District Court. Smith states in the motion
for stay that he initiated that action in state court on May
19, 2016. See Motion for Stay (ECF No. 50), p. 2.
Smith states in the status report that the state court has
scheduled an evidentiary hearing, and that and that there has
been litigation in the state court concerning possible
discovery, with leave to conduct certain discovery apparently
granted. See Status Report (ECF No. 62), pp. 1-2.
Rhines v. Weber, 544 U.S. 269 (2005), the United
States Supreme Court circumscribed the discretion of federal
district courts to impose stays to facilitate habeas
petitioners' exhaustion of claims in state court. The
Rhines Court stated:
[S]tay and abeyance should be available only in limited
circumstances. Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the
state courts, stay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court. Moreover, even if a petitioner had good cause for that
failure, the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims are
plainly meritless. Cf. 28 U.S.C. § 2254(b)(2)
(“An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of
* * *
[I]t likely would be an abuse of discretion for a district
court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally
dilatory litigation tactics. In such circumstances, the
district court should stay, rather than dismiss, the mixed
Rhines, 544 U.S. at 277-78.
Later, in the context of the procedural default doctrine, the