United States District Court, D. Nevada
D George, United States District Judge.
an action for habeas corpus relief under 28 U.S.C. §
2254 brought by Hyrum Joseph West, a Nevada prisoner. On
February 26, 2018, the Court entered an Order (ECF No. 56)
that granted in part and denied in part respondents'
motion to dismiss (ECF No. 38) West's amended petition
for a writ of habeas corpus (ECF Nos. 33/34). The Order
directed West to either abandon his unexhausted grounds for
relief or file a motion for stay and abeyance. On July 16,
2018, West filed a motion for stay and abeyance. ECF No. 61.
For reasons discussed below, the Court will deny the motion.
Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court condoned, but also placed limitations upon, the federal
court's discretion to facilitate a habeas
petitioner's 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 in Rhines 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.
the 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).
argument in support of stay and abeyance consists largely of
a recapitulation of his substantive habeas claims. He also
argues that his claims have already been exhausted in state
court, but this Court stands by its prior determinations as
to which claims are and are not exhausted.
demonstrating good cause for his failure to exhaust, West
claims that he received ineffective assistance of appellate
counsel and post-conviction counsel. With respect to
appellate counsel, he claims that "it was a mistake to
appoint trial counsel as direct appeal counsel because he
will not cite [ineffective assistance of counsel] on
himself." ECF No. 61, p. 26. As respondents point out,
however, Nevada law provides that ineffective assistance of
counsel (IAC) claims are generally not appropriate for review
on direct appeal and are, instead, to be raised in
post-conviction proceedings in the state district court.
See Pellegrini v. State, 34 P.3d 519, 534 (Nev.
2001). Otherwise, Wests alleges only that appellate counsel
was "constitutionally required to put all of West's
proceedings in direct appeal." ECF No. 61, p. 26. This
is plainly inaccurate. See Jones v. Barnes, 463 U.S.
745, 751-52 (1983) ("Experienced advocates since time
beyond memory have emphasized the importance of winnowing out
weaker arguments on appeal and focusing on one central issue
if possible, or at most on a few key issues.").
Ninth Circuit has held that ineffective assistance of
post-conviction counsel can be good cause for a
Rhines stay, but to the extent the holding was based
on Martinez v. Ryan, 566 U.S. 1 (2012), it extends
only to claims alleging ineffective assistance of trial
counsel. See Blake, 745 F.3d at 983-84 (recognizing
that Martinez held that "IAC by state
post-conviction counsel 'at initial-review collateral
proceedings may establish cause for a prisoner's
procedural default of a claim of ineffective assistance at
trial'"). Moreover, in alleging his post-conviction
counsel was ineffective, West makes only broad allegations
that post-conviction counsel supplemented his pro se
submissions to the state court rather than amending
them. ECF No. 61, p. 2, 17. He does not establish how this
caused his failure to exhaust the relevant claims. Without
more, West falls short of making the necessary showing under
Rhiines/Blake. See Blake, 745 F.3d at 982 (noting
that "a bald assertion cannot amount to a showing of
West has not demonstrated good cause for his failure to
exhaust his unexhausted claims in state court, his request
for stay and abeyance will be denied.
THEREFORE ORDERED that petitioner's motion for stay and
abeyance (ECF No. 61) is DENIED.
FURTHER ORDERED that petitioner shall have 30
days from the date this Order is entered within
which to file a Notice of Abandonment of Unexhausted Claims,
indicating that his unexhausted claims (i.e., all claims
except for Ground 6, the Confrontation Clause claim and
ineffective assistance of appellate counsel claim in Ground
7, the Double Jeopardy Clause claim in Ground 8, the
ineffective assistance of appellate counsel claims in Grounds
9 and 10, the deprivation of counsel claim in Ground 11, and
Ground 12 to the extent it alleges cumulative error based on
errors raised on direct appeal) are to be deleted from his
amended petition (ECF Nos. 33/34).
FURTHER ORDERED that, if petitioner does not abandon his
unexhausted claims within the time allowed, the amended
petition (ECF Nos. 33/34) shall be ...