United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE.
a counseled petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 filed by a Nevada state prisoner. On
January 23, 2019, the court found that the amended petition
is mixed, containing both exhausted and unexhausted claims.
In response, petitioner moves to stay this action and hold
his claims in abeyance pursuant to Rhines v. Weber,
544 U.S. 269 (2005), or in the alternative, pursuant to the
three-step procedure of Kelly v. Small, 315 F.3d
1063 (9th Cir. 2003). (ECF No. 62). Respondents oppose. (ECF
Rhines, the Supreme Court placed limitations upon
the discretion of the court to facilitate habeas petitioners=
return to state court to exhaust claims. The Rhines
[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 postconviction counsel can also
constitute good cause. Blake v. Baker, 745 F.3d 977,
982-83 (9th Cir. 2014). But a petitioner does not establish
good cause simply by asserting a conclusory and unsupported
claim that his counsel was ineffective; he must also develop
his argument under the standards of Strickland v.
Washington, 466 U.S. 668 (1984). See Wooten v.
Kirkland, 540 F.3d 1019, 1024 n.2 (9th Cir. 2008).
unexhausted claim of the petition, Claim 2, asserts appellate
counsel was ineffective for: (1) filing a deficient opening
brief and no reply brief; (2) failing to obtain materials
that would have allowed petitioner to appeal issues involving
jury selection, including questions about gangs that were
posed to the prospective jurors; (3) failing to argue that
the prosecution committed misconduct by misstating the law
with respect to the elements of first degree murder,
manslaughter and the State's burden of proof; and (4)
failing to argue that the prosecutor improperly commented on
petitioner's right to remain silent, shifted the burden
of proof and urged the jury to conduct its own testing of the
evidence. (ECF No. 47 at 30-34). On postconviction appeal,
postconviction counsel asserted generally that appellate
counsel was ineffective, but argued specifically only that
counsel did not assert certain claims regarding
“provocation.” (ECF No. 16-1 at 15 (Ex. 102)).
Petitioner asserts that the ineffective assistance of his
postconviction counsel in failing to raise the claims in
Claim 2 constitutes good cause justifying a Rhines
ineffective assistance of counsel claim is conclusory and
insufficiently developed or supported. While the court has
conducted a preliminary review of the record in order to
evaluate whether postconviction counsel was ineffective for
failing to raise the arguments in Claim 2, it is beyond the
scope of this stay motion to make a conclusive ruling on the
issue. Upon preliminary review of the record, and absent a
strong showing by petitioner, the court is not persuaded, for
purposes of this motion, that postconviction counsel was
ineffective for failing to assert the arguments in Claim 2.
The court concludes petitioner has not established good
cause, and the motion for a Rhines stay will
therefore be denied on that basis.
alternative, petitioner seeks to invoke the three-step
procedure pursuant to Kelly v. Small, 315 F.3d 1063
(9th Cir. 2003). King v. Ryan, 564 F.3d 1133, 1135
(9th Cir. 2009). Under the three steps of the Kelly
procedure, (1) the petitioner may amend his petition to
delete the unexhausted claims, (2) the court stays the
petition and hold the exhausted claims in abeyance while
petitioner exhausts his unexhausted claims in state court;
and (3) following exhaustion, the petitioner amends his
petition to re-attach the newly exhausted claims.
Id. Under Kelly, the petitioner is not
required to show good cause. Id. at 1140.
court, in its discretion, will grant petitioner's request
to invoke the Kelly procedure. The claims petitioner
seeks to exhaust are not plainly meritless, and there is no
indication of dilatory tactics. Accordingly, petitioner will
be granted leave to amend his petition to delete Claim 2, and
the petition will thereafter be stayed and abeyed pending
exhaustion of Claim 2 in state court. Following completion of
state court proceedings on the unexhausted claim, petitioner
may file a motion to reopen the action and amend the petition
to reassert Claim 2.
granting the petitioner's alternative request, the court
makes no representation or holding that Claim 2 will be
considered timely once re-attached to the petition.
accordance with the foregoing, IT IS THEREFORE ORDERED that
petitioner's motion to stay and abey (ECF No. 62) is
GRANTED IN PART and DENIED IN PART. The motion for a
Rhines stay is denied. The motion for a stay
pursuant to the Kelly procedure is granted.
Petitioner may, within fifteen days of the date of this
order, amend his petition to delete Claim 2. After he has
done so, the court will enter an order staying these
proceedings and ...