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Leonard v. Gittere

United States District Court, D. Nevada

May 14, 2019

WILLIAM GITTERE,[1] et al., Respondents.



         I. SUMMARY

         On March 27, 2019, Petitioner filed a motion for stay and abeyance asking the Court to suspend these federal proceedings while he once again pursues state court relief from his conviction and death sentence. (ECF No. 169.) For the reasons that follow, the motion will be denied.


         Nearly two and a half years ago, this Court reopened these proceedings after a ten-year exhaustion stay. At that time, the Court entered a scheduling order that allowed Petitioner 60 days within which to file an amended petition. (ECF No. 120.) Within that 60-day period, Petitioner filed, in succession, a motion for leave to supplement his petition for writ of habeas corpus (ECF No. 121), a motion to re-impose the stay (ECF No. 124), and a motion for extension of time to file a first amended petition pending resolution of his motion to re-impose the stay (ECF No. 127).

         When the Court denied Petitioner's motion to re-impose the stay (ECF No. 129), Petitioner filed a motion for reconsideration (ECF No. 130) that further delayed the filing of his first amended petition. And, from the time the motion for reconsideration was denied, nearly five months passed before Petitioner filed his 400-page amended petition.

         After receiving four extensions of time, Respondents filed a motion to dismiss the petition, advancing various procedural defenses including failure to exhaust. Petitioner then filed the motion for stay and abeyance currently before the Court for decision.


         In Rhines v. Weber, 544 U.S. 269 (2005), the stay and abeyance procedure was condoned by the Court as a means by which a habeas petitioner with a mixed petition subject to dismissal under Rose v. Lundy, 455 U.S. 509 (1982), could fully exhaust his petition without the risk of running afoul of the 1-year statutory time limit for filing federal petitions. See Rhines, 544 U.S. at 276. The Court in Rhines cautioned, however, that stay and abeyance, if too frequently used, would undermine AEDPA's goals of prompt resolution of claims and deference to state court rulings. See id. Thus, the Court held that, in order to obtain “stay and abeyance, ” a petitioner must show: 1) good cause for the failure to exhaust claims in state court; 2) that unexhausted claims are potentially meritorious; and 3) the absence of abusive tactics or intentional delay. See id.; see also Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005).


         With his motion for stay and abeyance, Petitioner asks the Court to stay further proceedings in this case until he completes state court litigation of an amended petition for writ of habeas corpus he filed in the state district court on June 9, 2017. According to Petitioner, the amended state petition includes a claim of ineffective assistance of counsel supported by “newly discovered evidence, ” which consists of “a declaration from trial counsel [James Wessel] acknowledging the harm his gambling addiction caused to [Petitioner].” (ECF No. 169 at 3.)

         This Court sees several problems with Petitioner's request for a stay. First, the allegation that trial counsel's gambling problem negatively impacted his performance while representing the Petitioner is not new. Indeed, the initial petition filed in this case in 1999 alleged that, while he “was preparing and conducting Petitioner's defense, lead counsel was trying to deal with unfolding consequences of his own criminal conduct stemming from a gambling addition” which involved “the embezzlement of $150, 000 of another client's funds, which was discovered several months prior to Petitioner's capital murder trial” and shortly after the trial “resulted in lead counsel's conviction of three felony counts of embezzlement, incarceration and disbarment.” (ECF No. 3 at 7-8 (emphasis in original).) See also DePasquale v. McDaniel, No. 3:07-cv-00472-ECR, 2011 WL 841419, at *7 (D. Nev. Mar. 7, 2011) (referencing “Wessel's gambling problem, financial problems, and actions which resulted in Wessel's eventual disbarment and conviction for the crime of embezzlement”).

         As noted, a Rhines stay permits a petitioner to present unexhausted claims to the state court while his federal petition remains pending, thereby allowing him to avoid the risk of later returning to federal court with a time-barred petition. Here, Petitioner does not identify a particular unexhausted claim he intends to exhaust during his requested stay. It appears only that he wishes to supplement long-standing ineffective assistance of counsel claims with additional evidence; i.e., an acknowledgment from Wessel himself regarding the harmful impact of his gambling problem. That is not the purpose of a Rhines stay.

         On the other hand, if Petitioner is, in fact, presenting an unexhausted claim in his recently filed state petition, he has not established good cause for failing to exhaust the claim. Evidence of trial counsel's gambling, financial, and legal woes has been readily available for most, if not all, of the 30 years since Petitioner's conviction. Wessel's belated acknowledgment that his gambling problem undermined his performance was not a prerequisite for bringing a claim challenging his performance nor does the acknowledgment give rise to a new claim. As Respondents note, Strickland v. Washington presents an objective standard for reviewing trial counsel's performance. See466 U.S. 668, 688 (1984). Wessel's ...

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