United States District Court, D. Nevada
ORDER GRANTING MOTION FOR STAY AND ABEYANCE [ECF NO.
26]
JENNIFER A. DORSEY U.S. DISTRICT JUDGE
Petitioner
Donte Johnson moves to stay this capital habeas case while he
exhausts claims in state court.[1] The respondents have filed a
notice stating that they do not oppose Johnson's
motion.[2] I grant the motion and stay this case
while Johnson completes his state-court litigation.
Background
Johnson
was convicted in 2005 in Nevada's Eighth Judicial
District Court, in Clark County, of first degree murder and
other crimes related to the 1998 robbery and killing of
Matthew Mowen, Jeffrey Biddle, Tracey Gorringe, and Peter
Talamantez.[3] After a direct appeal and state habeas
petitions, Johnson initiated this federal habeas action on
April 3, 2018.[4] I appointed the Federal Public Defender
for the District of Nevada (FPD) to represent
him[5]
and, with counsel, Johnson filed an amended habeas petition
on December 20, 2018.[6]
Discussion
In
Rhines v. Weber, [7] the United States Supreme Court limited
the district courts' discretion to allow habeas
petitioners to return to state court to exhaust claims. When
a petitioner pleads both exhausted and unexhausted
claims-known as a mixed petition-the district court may stay
the petition to allow the petitioner to return to state court
to exhaust the unexhausted ones only 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.[8]“[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].”[9] “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.”[10] The Supreme Court's opinion in
Pace v. DiGuglielmo, [11] suggests that this standard is
not particularly stringent, as the High Court held 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.”[12]
Johnson
contends that he meets these requirements for a stay, and
respondents do not disagree. Focusing on Claims 3(A),
4(F)-(J) and 14(B)(18), as Johnson does, I determine that
Johnson has shown good cause for his failure to previously
exhaust those claims. He contends in these claims that his
post-conviction counsel was ineffective.[13] I also find
that Johnson has sufficiently shown that those claims are
potentially meritorious.[14] And there is no showing that Johnson
has engaged in intentionally dilatory litigation
tactics.[15] Therefore, I conclude that the
requirements for a Rhines stay of this action
pending exhaustion of Johnson's claims in state court are
satisfied, and I grant Johnson's motion for a stay.
In
exercising my discretion, I take into account the Nevada
Supreme Court's holding in Crump v. Warden,
[16]
under which there is a possibility that the Nevada courts may
consider Johnson's unexhausted claims, on their merits,
upon a showing of ineffective assistance of his
post-conviction counsel. My intention is that this will be
the last time that this action is stayed to facilitate
exhaustion of claims in state court. Johnson must exhaust all
his unexhausted claims in state court during the stay imposed
by this order.
IT
IS THEREFORE ORDERED that Johnson's Motion for
Stay and Abeyance [ECF No. 21] is GRANTED.
This action is STAYED while Johnson exhausts his
unexhausted claims for habeas corpus relief in state
court.
IT IS
FURTHER ORDERED that Johnson must file a status
report by June 15, 2019, describing the status of
his state-court proceedings, and he must file a
status report every six months thereafter (on or
before December 15, 2019; June 15, 2020; etc.) until this
stay is lifted. Respondents may, if necessary, file a
response to any of those status reports within 15 days after
its filing, and Johnson will have 15 days from any response
to file a reply.
IT
IS FURTHER ORDERED that Johnson must move to
lift this stay within 30 days after the conclusion of his
state court proceedings. If Johnson does not comply
with the time limits in this order, or if he otherwise fails
to proceed with diligence during this stay, the court may
entertain a motion by respondents to dismiss this action.
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Notes:
[1] ECF No. 21.