United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE.
pro se habeas matter under 28 U.S.C. § 2254
comes before the court on petitioner Ray Pineda's motion
for stay and abeyance in accordance with Rhines v.
Weber in order that he may exhaust the unexhausted
grounds of his petition (ECF No. 24). Respondents opposed
(ECF No. 25).
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.
Court went on to state 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.
this court may stay a petition containing both exhausted and
unexhausted claims if: (1) the habeas petitioner has good
cause; (2) the unexhausted claims are potentially
meritorious; and (3) petitioner has not engaged in dilatory
litigation tactics. Rhines, 544 U.S. at 277;
Gonzalez v. Wong, 667 F.3d 965, 977-80 (9th Cir.
2011). “[G]ood 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). See also
Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)
(the application of an “extraordinary
circumstances” standard does not comport with the
“good cause” standard prescribed by
order dated August 22, 2017, this court granted
respondents' motion to dismiss in part and concluded that
grounds 1(b), 1(c), 1(f), 1(h), 1(j) and ground 3 were
unexhausted. (ECF No. 23). Ground 1 sets forth various claims
of ineffective assistance of trial counsel (ECF No. 5, pp.
8-23). In ground 3, Pineda argues that the state failed to
disclose petitioner's brother Juan Pineda's
voluntary, exculpatory statement pursuant to Brady v.
Maryland (Juan passed away before trial). Id.
claims in his motion for stay that his federal petition-which
he dispatched for mailing on March 29, 2016-is a protective
petition filed here while he pursues his unexhausted claims
in state court (ECF No. 24). However, respondents point out
that Pineda does not have a state postconviction petition
currently pending, and he has not filed any state
postconviction petition since he filed this federal petition
in March 2016 (ECF No. 25). Moreover, Pineda offers no
argument whatsoever that he has good cause for his failure to
exhaust his unexhausted claims in state court.
petitioner's motion for a stay and abeyance of this
federal habeas corpus proceeding is denied. Pineda must now
either (1) inform this court in a sworn declaration that he
wishes to formally and forever abandon the unexhausted
grounds for relief in his federal habeas petition and proceed
on the exhausted grounds; OR (2) inform this court in a sworn
declaration that he wishes to dismiss this petition without
prejudice in order to return to state court to exhaust his
IS THEREFORE ORDERED that petitioner's motion
for stay and abeyance (ECF No. 24) is
IS FURTHER ORDERED that petitioner shall have
thirty (30) days to either: (1) inform this
court in a sworn declaration that he wishes to formally and
forever abandon the unexhausted grounds for relief in his
federal habeas petition and proceed on the exhausted grounds;
OR (2) inform this court in a sworn declaration that he
wishes to dismiss this petition without prejudice in order to
return to state court to exhaust his unexhausted claims.
IS FURTHER ORDERED that if petitioner elects to
abandon his unexhausted grounds, respondents shall have
thirty (30) days from the date petitioner
serves his declaration of abandonment in which to file an
answer to petitioner's remaining grounds for relief. The
answer shall contain all substantive and procedural arguments
as to all surviving grounds of the petition, and shall comply
with Rule 5 of the Rules Governing Proceedings in the United
States District Courts under 28 U.S.C. §2254.
IS FURTHER ORDERED that petitioner shall have
thirty (30) days following service of