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Wilcock v. Gentry

United States District Court, D. Nevada

June 4, 2019

Patrick Edward Wilcock, Petitioner
v.
Jo Gentry, et al., Respondents

          ORDER GRANTING MOTION TO STAY AND ABEY PROCEEDINGS [ECF NO. 30]

          JENNIFER A. DORSEY U.S. DISTRICT JUDGE.

         Patrick Edward Wilcock petitions under 28 U.S.C. § 2254 for habeas corpus relief from his state-court conviction for first-degree murder, burglary with a deadly weapon, robbery, possession of stolen property, and two deadly weapon enhancements. Wilcock moves for a stay under Rhines v. Weber to allow him to return to state court to exhaust various grounds for relief.[1] Respondents do not oppose the request.[2] I grant the motion and stay this case pending Wilcock's exhaustion of state-court proceedings.

         Discussion

         In Rhines v. Weber, [3] the United States Supreme Court limited the district courts' discretion to allow habeas petitioners to return to state court to exhaust claims. When a petitioner pleads both exhausted and unexhausted claims-known as a mixed petition-the district court may stay the petition to allow the petitioner to return to state court to exhaust the unexhausted ones only 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.[4]“[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].”[5] “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.”[6] The Supreme Court's opinion in Pace v. DiGuglielmo, [7] suggests that this standard is not particularly stringent, as the High Court held 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.”[8]

         Wilcock meets the standard for a Rhines stay. He explains that he is currently pursuing Brady claims in state court related to the state's alleged suppression of favorable and material evidence regarding the state's key witness against him.[9] While respondents do not waive any defenses to Wilcock's second-amended petition, they indicate that they do not oppose the motion for stay.[10] Especially in light of respondents' non-opposition, I find that a Rhines stay is warranted, and I grant it.

         IT IS THEREFORE ORDERED that petitioner's motion for issuance of stay and abeyance[11] of this federal habeas corpus proceeding [ECF No. 30] is GRANTED.

         IT IS FURTHER ORDERED that this action is STAYED pending final resolution of petitioner's postconviction habeas petition. Petitioner must return to federal court with a motion to reopen this case within 45 days of the issuance of the remittitur by the Supreme Court of Nevada at the conclusion of the state-court proceedings on his postconviction habeas petition.

         IT IS FURTHER ORDERED that the Clerk is directed to ADMINISTRATIVELY CLOSE this action.

---------

Notes:

[1] ECF No. 30.

[2] ECF No. 31.

[3] Rhines v. Weber, 544 U.S. 269 (2005).

[4] Id. at 277; Gonzalez v. Wong, 667 F.3d 965, 977-80 (9th Cir. ...


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