United States District Court, D. Nevada
a habeas corpus proceeding pursuant to 28 U.S.C. § 2254
brought by Phillip Sharpe, a Nevada prisoner. On May 18,
2017, respondents filed to a motion to dismiss arguing that
Sharpe's habeas petition is untimely under 28 U.S.C.
§ 2244(d), that one of the claims in the petition is
unexhausted, and that all of the claims are not cognizable in
this proceeding. ECF No. 16. In response to the motion,
Sharpe filed an amended petition and a request that this
court stay proceedings and hold them in abeyance while he
pursues state court exhaustion. ECF Nos. 22/23. He also filed
a motion for appointment of counsel. ECF No. 24.
initial matter, respondents' argument as to the
timeliness of the petition is without merit. Respondents
concede that Sharpe's petition became final on September
9, 2015, for the purposes of 28 U.S.C. § 2244(d)(1)(A).
ECF No. 16, p. 2-3. Petitioner initiated this proceeding on
July 27, 2016, well within § 2244(d)'s one-year
statutory period. ECF No. 9, p. 1. See Houston v.
Lack, 487 U.S. 266, 276 (1988) (under the “mailbox
rule” a pro se petition is deemed filed when it is
given to prison authorities for forwarding to the court
Sharpe's petition is timely, respondents' arguments
as to the cognizability of Sharpe's claims appear to have
merit - i.e., the claims would not provide grounds for habeas
relief because they are either barred by the holding in
Stone v. Powell, 428 U.S. 465 (1976), or they
present only questions of state law. Sharpe's proposed
amended petition (ECF No. 23), however, contains claims
alleging that he was deprived of his Sixth Amendment right to
effective assistance of counsel, which are cognziable in a
federal habeas proceeding. Thus, this court will grant Sharpe
leave to file the amended petition and deny respondents'
motion to dismiss without prejudice. See Jarvis v.
Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curiam)
(“[A] petition for habeas corpus should not be
dismissed without leave to amend unless it appears that no
tenable claim for relief can be pleaded were such leave
addition, the court will also grant Sharpe's request to
stay these proceedings to allow him to exhaust his state
court remedies. In Rhines v. Weber, 544 U.S. 269
(2005), the Supreme Court authorized the federal court to
facilitate habeas petitioners' return to state court to
exhaust claims. The Court in Rhines stated that,
“[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.” Id. at 278.
cause turns on whether the petitioner can set forth a
reasonable excuse, supported by sufficient evidence, to
justify [the failure to exhaust a claim in state
court].” Blake v. Baker, 745 F.3d 977, 982
(9th Cir. 2014). “While a bald assertion cannot amount
to a showing of good cause, a reasonable excuse, supported by
evidence to justify a petitioner's failure to exhaust,
will.” Id. An indication that the standard is
not particularly stringent can be found in Pace v.
DiGuglielmo, 544 U.S. 408 (2005), where the Supreme
Court stated 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, 544 U.S. at 416
(citing Rhines, 544 U.S. at 278).
Sharpe filed his federal petition before seeking
post-conviction relief in state court, which is the only
avenue by which he can exhaust his ineffective assistance of
counsel claims. He claims that he filed his federal petition
first “to prevent being time barred.” ECF No. 22,
p. 2. In addition, he claims that his ability to pursue
post-conviction relief has been impeded by health problems,
including diabetes and cancer treatments.
has demonstrated good cause under Rhines for failing
to exhaust claims prior to filing his federal petition.
Moreover, his ineffective assistance of counsel claims do not
appear to be “plainly meritless.” See
Rhines, 544 U.S. at 277. Thus, his request for a stay
and abeyance of this federal habeas corpus proceeding shall
IS THEREFORE ORDERED that respondents' motion to
dismiss (ECF No. 16) is DENIED without prejudice.
IS FURTHER ORDERED that petitioner's motion for
leave to file an amended petition and for stay and abeyance
(ECF No. 22) is GRANTED. This action is STAYED pending
exhaustion of petitioner's unexhausted claims.
IS FURTHER ORDERED that the grant of a stay is
conditioned upon petitioner further litigating his state
post-conviction petition or other appropriate proceeding in
state court and returning to federal court with a motion to
reopen within forty-five (45) days of
issuance of the remittitur by the Supreme Court of Nevada at
the conclusion of the state court proceedings.
IS FURTHER ORDERED that petitioner's motion for
appointment of counsel (ECF No. 24) is DENIED without
prejudice to petitioner renewing the motion, if necessary,
when these proceedings are reopened.
IS FURTHER ORDERED that the clerk shall
administratively close this action, until such time as the