United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 comes before the Court on
petitioner's motion to stay (ECF No. 15) and motion for
appointment of counsel (ECF No. 17).
commenced this action with the filing of his petition and a
motion for appointment of counsel in September 2015. The
Court denied the motion for appointment of counsel and
directed the respondents to file a response to the petition.
On August 4, 2016, respondents filed a motion to dismiss.
Petitioner did not oppose. On December 11, 2017, the Court
granted the motion to dismiss in part, finding most of the
petitioner's claims to be unexhausted. (ECF No. 14.) As
the petition was mixed, it was therefore subject to dismissal
pursuant to Rose v. Lundy, 455 U.S. 509 (1982). The
Court directed petitioner to either (1) abandon his
unexhausted claims; (2) move for dismissal of the entire
petition so he could return to state court to exhaust his
unexhausted claims; or (3) file another appropriate motion,
such as a motion to stay and abey. Petitioner has elected to
seek from this Court a stay and abeyance. (ECF No. 15.) He
also again seeks appointment of counsel. (ECF No. 17.)
Appointment of Counsel
is no constitutional right to appointed counsel for a federal
habeas corpus proceeding. Pennsylvania v. Finley,
481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d
425, 428 (9th Cir. 1993). The decision to appoint counsel is
generally discretionary. Chaney v. Lewis, 801 F.2d
1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S.
1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234
(9th Cir.), cert. denied, 469 U.S. 838 (1984).
However, counsel must be appointed if the complexities of the
case are such that denial of counsel would amount to a denial
of due process, and where the petitioner is a person of such
limited education as to be incapable of fairly presenting his
claims. See Chaney, 801 F.2d at 1196; see also
Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The
petition in this case is sufficiently clear in presenting the
issues that petitioner wishes to raise, and the issues are
not complex. Therefore, counsel is not justified, and the
motion for appointment of counsel will again be denied.
Motion for Stay and Abeyance
Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court placed limitations upon the discretion of the court to
facilitate habeas petitioners' return to state court to
exhaust claims. 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
Rhines, 544 U.S. at 277. The Court went on to state
that “it 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.
Ninth Circuit has held that the application of an
“extraordinary circumstances” standard does not
comport with the “good cause” standard prescribed
by Rhines. Jackson v. Roe, 425 F.3d 654,
661-62 (9th Cir. 2005). “[G]ood cause turns on whether
the petitioner can set forth a reasonable excuse, supported
by sufficient evidence, to justify [the] failure” to
exhaust his claims in state court. Blake v. Baker,
745 F.3d 977, 982 (9th Cir. 2014).
asserts that he did not exhaust all his claims in state court
because appointed counsel refused to do so. (ECF No. 15 at
2.) Petitioner further asserts that counsel told him he could
still present his claims in federal court even if they were
not exhausted. (Id. at 3.) However, petitioner does
not allege that post-conviction counsel was ineffective for
failing to raise the unexhausted claims and has not presented
any information that would allow the Court to evaluate
whether he has colorable claim of ineffective assistance of
post-conviction counsel for such failure. Further, while it
is perhaps possible that some of petitioner's unexhausted
claims are potentially meritorious, the Court lacks
sufficient information to make such a determination.
Accordingly, petitioner has not demonstrated any basis for
granting a stay and abeyance in this case, and the request
must be denied.
accordance with the foregoing, it is therefore ordered that
petitioner's motion for appointment of counsel (ECF No.
17) is denied.
further ordered that petitioner's motion for stay and
abeyance (ECF No. 15) is denied.
further ordered that petitioner shall, within thirty (30)
days of the date of this order, mail to the Clerk for filing
either a: (1) a motion to dismiss seeking partial dismissal
of only the unexhausted claims; or (2) a motion to dismiss
the entire petition without prejudice in order to return to
state court to exhaust the unexhausted claims. The entire
petition will be dismissed without ...