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Smith v. Filson

United States District Court, D. Nevada

March 23, 2017

MONTRAIL D. SMITH, Petitioner,
v.
TIMOTHY FILSON, et al., Respondents.

          ORDER

         This 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.

         Smith 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.)

         Smith 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).

         Smith 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).

         On 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).

         Smith 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).

         Respondents 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).

         In his 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.

         In 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 the State”).
* * *
[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 petition.

Rhines, 544 U.S. at 277-78.

Later, in the context of the procedural default doctrine, the ...

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