United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
pro se habeas petition comes before the Court on
petitioner's motion for a stay and abeyance (ECF No. 51)
and motion for default judgment (ECF No. 49).
in this action challenges his conviction for two counts of
commission of a fraudulent act in a gaming establishment and
four counts of entry of a gaming establishment by an excluded
person. He asserts several substantive and ineffective
assistance of counsel claims in his petition, including a
challenge to the sufficiency of the evidence on the cheating
convictions (Grounds 2 and 3). On December 8, 2017, the Court
found that several of petitioner's claims were
unexhausted -- Grounds 2 and 3 among them. (ECF No. 42). In
view of the mixed petition, the Court directed petitioner to
file either a motion to dismiss the unexhausted claims, a
motion to dismiss the entire petition, or a motion for other
appropriate relief, including a motion to stay and abey.
response, petitioner filed a motion asking the Court to rule
on his unexhausted claims. (ECF No. 44). The Court denied the
motion but reconsidered its exhaustion finding with respect
to one of the petitioner's claims. (ECF No. 48). The
Court again directed petitioner to decide how he would like
to proceed with respect to his mixed petition. (Id.)
In response, petitioner has filed a motion to stay and abey.
(ECF No. 51).
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.
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). The 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). Thus, a petitioner's
confusion over whether or not his petition would be timely
filed constitutes good cause for the petitioner to file his
unexhausted petition in federal court. Pace v.
DiGuglielmo, 544 U.S. 408, 416-17 (2005). Ineffective
assistance of post-conviction counsel can also constitute
good cause. Blake v. Baker, 745 F.3d 977, 982-83
(9th Cir. 2014).
argues that his appellate counsel's failure to raise some
of his claims on direct appeal - namely Grounds 2 and 3 --
constitutes good cause. Petitioner argues that counsel was
ineffective in such failure and admitted to being so.
Respondents argue that while this might explain why the
claims were not raised on direct appeal, it does not explain
why petitioner failed to raise them in his first pro
se post-conviction habeas petition. Respondents also
challenge any conclusion that appellate counsel was
ineffective for failing to raise the claims.
Court finds petitioner has demonstrated good cause. First,
appellate counsel himself believed his failure to challenge
the sufficiency of the evidence on the cheating convictions
was ineffective. (Ex. 99 (Tr. 28-29)). Second, although
petitioner did not exhaust these claims in his first
post-conviction proceedings, it was only because they were
not raised on appeal - not because they were not raised at
all. Petitioner asserted his sufficiency of the evidence
claims in his original pro se petition.
(See Ex. 84 at 8). It is probable that
post-conviction counsel elected not to raise the claims on
appeal because the district court found them non-cognizable
and waived. (Ex. 122). While neither factor, standing alone,
would likely be sufficient to support a finding of good
cause, the Court finds that in combination and under the
specific circumstances of this case, they satisfy the
Rhines good cause standard.
Court further finds that Grounds 2 and 3, at least, are not
plainly meritless and that petitioner has not engaged in
intentionally dilatory litigation tactics. Accordingly, the
Court will grant the petitioner's motion for a stay and
petitioner's motion for default judgment, that motion
will be denied. The Court has not yet ordered respondents to
answer the petition, and thus their failure to answer Ground
1 is not in default. Nor, as respondents point out, is
default judgment an available remedy in habeas. Gordon v.
Duran, 895 F.2d 610, 612 (9th Cir. 1990).
accordance with the foregoing, IT IS THEREFORE ORDERED that
petitioner's motion for default judgment (ECF No. 49) is
FURTHER ORDERED that respondents shall file a notice of
corrected image of the exhibits contained in ECF No. 60 to