United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
before the Court in this recently-filed capital habeas
proceeding is Petitioner's “motion to stay federal
habeas proceedings” (“Motion”). (ECF No.
2.) This proceeding is unique in that Petitioner currently
has another habeas proceeding pending in this Court
challenging the same judgment of conviction. (No.
2:93-cv-1209-LRH-VCF.) In the Motion, Petitioner asks the
Court to stay proceedings in this case until his
“ongoing state post-conviction action is
concluded.” (ECF No. 2 at 1.)
petition in this case advances a single claim-that
Petitioner's death penalty “no longer has any legal
basis” because both aggravating circumstances
supporting his death sentence have been invalidated. (ECF No.
1 at 5-6.) The relatively-recent factual development giving
rise to this claim is that a New York robbery conviction that
served as the prior-violent-felony aggravating circumstance
for Petitioner's death sentence was vacated, on May 22,
2018, by the New York court in which it
originated. Petitioner's other case in this Court
is on limited remand from the Court of Appeals for this Court
to adjudicate numerous ineffective assistance of counsel
claims under Martinez v. Ryan, 566 U.S.1 (2012).
(No. 2:93-cv-1209-LRH-VCF (ECF No. 311).)
September 4, 2018, Petitioner filed a petition for
post-conviction relief in state court challenging his death
sentence on the basis that there are now no valid aggravators
because the final one has been nullified. (ECF No. 2-1.)
Petitioner contends that a stay of this case is warranted
under Rhines v. Weber, 544 U.S. 269 (2005), and
Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005), until
that state proceeding has concluded, thereby exhausting the
lone claim in his federal petition. In response, Respondents
indicate they would not oppose the request under normal
circumstances but must do so here “because the petition
itself is not procedurally proper.” (ECF No. 5 at 3.)
argue that, while the petition in this case may not be a
second or successive petition subject to the restrictions of
28 U.S.C. § 2244(b), Petitioner has nonetheless failed
to demonstrate that he is permitted to file a second petition
while a petition challenging the same state conviction and
the same aggravating circumstances remains pending. According
to Respondents, Petitioner should be required to amend his
pending petition in No. 2:93-cv-1209-LRH-VCF rather than be
permitted to file this new proceeding.
Court disagrees. Respondents are correct that Petitioner has
not provided the Court with controlling precedent authorizing
him to file a new habeas petition while his other petition is
pending. Respondents have not, however, provided persuasive
argument or authority that such a proceeding is prohibited.
In a case from the Tenth Circuit, cited by Petitioner, the
Court of Appeals affirmed the district court's decision
to grant habeas relief on a newly-raised claim even though
the denial of petitioner's initial petition remained
pending on appeal. See Douglas v. Workman, 560 F.3d
1156 (10th Cir. 2009).
the considerations cited by the Tenth Circuit was that the
adjudication of the new claim was not inconsistent with the
Antiterrorism and Effective Death Penalty Act (AEDPA), which
was enacted “to reduce delays in the execution of state
and federal sentences, promote judicial efficiency, and
conserve judicial resources.” Id. at 1195.
Here, Petitioner points out that his original case was filed
25 years ago. Requiring Petitioner to amend the petition in
that case would likely result in significant additional delay
and arguably exceeds the scope of the Ninth Circuit's
amended claim would necessitate a stay of the original
proceeding while the claim is exhausted. See Rhines,
544 U.S. at 273-74 (discussing Rose v. Lundy, 455
U.S. 509 (1982)). Petitioner's state post-conviction
proceeding on the new claim has already run into an obstacle
as the state district court has stayed the proceeding pending
the outcome of a separate appeal Petitioner has pending in
the Nevada Supreme Court. (ECF No. 6 at 6.) Rather than
further delay the adjudication of the original proceeding,
the more prudent course is for this Court to adjudicate
Petitioner's new petition separately.
summary, the Court concludes that it is not prohibited from
adjudicating Petitioner's new claim in a separate
proceeding and that allowing this case to proceed serves the
interests of fairness and judicial efficiency. Because the
lone claim in the petition is unexhausted and Petitioner has
satisfied the requirements for a stay under Rhines,
the motion to stay these proceedings will be granted. See
Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding
that a district court has the discretion to stay and hold in
abeyance fully unexhausted petitions).
therefore ordered that Petitioner's “motion to stay
federal habeas proceedings” (ECF No. 2) is granted.
This action is stayed while Petitioner exhausts, in state
court, his unexhausted claim for habeas corpus relief.
further ordered that, on or before June 15, 2019, Petitioner
must file and serve a status report, describing the status of
his state-court proceedings. Thereafter, during the stay of
this action, Petitioner must file such a status report every
6 months (on or before December 15, 2019; June 15, 2020;
December 15, 2020; etc.). Respondents may, if necessary, file
and serve a response to any such status report within 15 days
after its service. If necessary, Petitioner may reply within
15 days of service of the response.
further ordered that, following the conclusion of state court
proceedings, Petitioner must, within 30 days, make a motion
to lift the stay.
further ordered that this action will be subject to dismissal
upon a motion by Respondents if Petitioner does not comply
with the time limits in this order, or if he otherwise fails
to proceed with diligence during the stay imposed pursuant to
further ordered that Petitioner's “unopposed motion
to expedite ruling on ...