United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE.
counseled habeas petition comes before the court on
petitioner's motion for a stay and abeyance (ECF No. 24).
Respondents do not oppose (ECF No. 25).
initiated this action on or about December 13, 2017, with the
dispatch of a federal petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 5). On December
29, 2017, the court provisionally appointed the Federal
Public Defender to represent the petitioner. (ECF No. 4).
Counsel was officially appointed on April 5, 2018, and filed
an amended petition for writ of habeas corpus on February 14,
2019. (ECF Nos. 9 & 18). The amended petition contains an
unexhausted claim - Ground 1 - which is based on evidence
that counsel obtained during the investigation into
petitioner's case. Petitioner has initiated habeas
proceedings in state court in order to exhaust the claim and
now asks the court to stay this action while he completes the
ongoing state proceedings.
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.
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). This court has declined to prescribe
the strictest possible standard for issuance of a stay.
“[I]t would appear that good cause under
Rhines, at least in this Circuit, should not be so
strict a standard as to require a showing of some extreme and
unusual event beyond the control of the defendant.”
Riner v. Crawford, 415 F.Supp.2d 1207, 1210 (D. Nev.
2006). Thus, a petitioner's confusion over whether his
petition would be timely filed constitutes good cause for the
petitioner to file his unexhausted petition in federal court.
See Id. (citing Pace v. DiGuglielmo, 544
U.S. 408, 416-17 (2005)).
1 of the amended petition is a claim pursuant to Brady v.
Maryland, 373 U.S. 83 (1963) and Giglio v. United
States, 405 U.S. 150 (1972), asserting that the state
withheld school police reports that provided information that
could have inculpated another suspect and/or cast doubt on
the credibility of the state's star witness. Petitioner
asserts that this claim could not have been exhausted in his
first state court postconviction proceedings because he did
not have counsel in those proceedings and, although his trial
attorney requested the school police reports before trial,
they were never provided. It was not until the federal habeas
corpus proceedings that petitioner was finally provided the
pertinent reports. Petitioner asserts good cause based on the
allegedly withheld Brady evidence and the lack of
counsel for his first state habeas petition.
court agrees that good cause exists for the failure to first
exhaust Ground 1 in state court before the filing of the
instant petition. The court further finds that Ground 1 is
not “plainly meritless, ” and that petitioner has
not engaged in intentionally dilatory litigation tactics.
Accordingly, petitioner's unopposed request for a stay
and abeyance (ECF No. 24) will be granted.
accordance with the foregoing, petitioner's unopposed
motion for stay and abeyance (ECF No. 24) is granted.
further ordered that this action is stayed pending exhaustion
of Ground 1 of the amended petition.
further ordered that the grant of a stay is conditioned upon
petitioner litigating his state postconviction petition or
other appropriate proceeding in state court and returning to
federal court with a motion to reopen within forty-five (45)
days of issuance of the remittitur by the Supreme Court of
Nevada at the conclusion of the state court proceedings.
further ordered that the clerk shall administratively close
this action, until such time as the court ...