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Follett v. LeGrand

United States District Court, D. Nevada

March 27, 2017

LOREN RAYMOND FOLLETT Petitioner,
v.
ROBERT LeGRAND, et al., Respondents.

          ORDER

         Introduction

         In this habeas corpus action, the petitioner, Loren Raymond Follett, has filed a motion for stay, requesting that this case be stayed while he returns to state court to exhaust his state-court remedies with respect to the one unexhausted claim in his petition for writ of habeas corpus. Respondents have filed an opposition to that motion. The Court will deny Follett's motion for stay. The Court will grant Follett an opportunity to abandon his unexhausted claim and proceed with this case, and will set a schedule for further proceedings thereafter.

         Background

         Follett was convicted of sexual assault in Nevada's Second Judicial District Court, and he was sentenced to life in prison with the possibility of parole after ten years. See Judgment of Conviction, Exhibit 43 (ECF No. 9-3) (The exhibits referred to in this order were filed by respondents and are located in the record at ECF Nos. 7, 8, 9, 10 and 11.). The judgment of conviction was entered on March 30, 2012. See id.

         Follett appealed and the Nevada Supreme Court affirmed on May 15, 2013. See Order of Affirmance, Exhibit 64 (ECF No. 10-4).

         Follett filed a petition for writ of habeas corpus in the state district court on April 21, 2014. See Petition for Writ of Habeas Corpus (Post-Conviction), Exhibit 73 (ECF Nos. 10-13, 10-14, 10-15). The state district court dismissed Follett's petition in an order filed November 21, 2014. See Order Granting Motion to Dismiss, Exhibit 80 (ECF No. 10-22). Follett appealed, and the Nevada Supreme Court affirmed on March 17, 2016. See Order of Affirmance, Exhibit 94 (ECF No. 11-14).

         Follett initiated this federal habeas corpus action on June 23, 2016. In his federal habeas petition (ECF No. 1), Follett asserts five claims. In Ground 1, Follett claims that he was denied his federal constitutional rights as a result of jury instructions regarding sexual assault. See Petition for Writ of Habeas Corpus (ECF No. 1), pp. 6-11. In Ground 2, Follett claims that his federal constitutional rights were violated “because the trial court erred in permitting the State to present the testimony of an ‘expert' about matters that were irrelevant, would be confusing to the jury, and would not be helpful to the jury's understanding of any issue in the case.” See id. at 11-19. In Ground 3, Follett claims that he was denied his federal constitutional right to effective assistance of counsel because his trial counsel “failed to pursue defenses available to petitioner by failing to properly investigate the case and interview witnesses who could assist in petitioner's defense.” See id. at 19-22. In Ground 4, Follett claims that he was denied his federal constitutional right to effective assistance of counsel because his appellate counsel “failed to pursue defenses available to petitioner or even file a reply on direct appeal.” See id. at 22-23. And, finally, Ground 5 is a cumulative error claim; Follett claims that his federal constitutional rights were violated as a result of the multiple errors described in his petition. See id. at 23-25.

         Respondents filed a motion to dismiss on August 31, 2016, contending that Grounds 2 and 5 are unexhausted in state court. See Motion to Dismiss (ECF No. 4), pp. 2-4. The Court ruled on that motion on November 21, 2016, determining that Ground 2 is unexhausted in state court, but that Ground 5 is not. See Order entered November 21, 2016 (ECF No. 16), pp. 3-4. The Court granted Follett an opportunity to make an election to either abandon Ground 2 or move for a stay of this action while he exhausts Ground 2 in state court. See id. at 4-5.

         Follett filed a motion for stay on January 4, 2017 (ECF No. 17). Respondents filed an opposition to that motion on January 20, 2017 (ECF No. 18). Follett did not reply.

         Discussion

         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 ...

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