United States District Court, D. Nevada
M. NAVARRO UNITED STATES DISTRICT JUDGE
counseled habeas petition comes before the Court on
petitioner's motion to stay and abey (ECF No. 20).
Respondents do not oppose (ECF No. 21).
initiated this action on or about March 26, 2018, with the
dispatch of his federal petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 1). On April 10,
2018, the Court provisionally appointed the Federal Public
Defender to represent the petitioner. (ECF No. 6). Counsel
was officially appointed on May 11, 2018, and filed an
amended petition for writ of habeas corpus on February 4,
2019. (ECF Nos. 8 & 12). The amended petition contains
two unexhausted claims, both of which are based on McCoy
v. Louisiana, -- U.S. --, 138 S.Ct. 1500 (2018), which
was issued after petitioner litigated his state habeas
petition and filed his federal petition. Petitioner now seeks
a stay and abeyance so that he may exhaust his unexhausted
claims in state court.
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)).
argues that good cause exists because the basis for his
claims did not arise until after he had filed his federal
habeas petition. The Court agrees that this constitutes good
cause for the failure to first exhaust the claims in state
court before filing the federal petition. The Court further
finds that the unexhausted grounds are 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. 20) will be granted.
accordance with the foregoing, petitioner's unopposed
motion for stay and abeyance (ECF No. 20) is granted.
further ordered that this action is stayed pending exhaustion
of the unexhausted claims in the amended petition.
further ordered that respondents' motion for enlargement
of time (ECF No. 22) is granted. The time for respondents to
answer or otherwise respond to the amended petition will be
reset after the stay is lifted.
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 ...