United States District Court, D. Nevada
MIRANDAM. DU UNITED STATES DISTRICT JUDGE.
counseled habeas matter comes before the Court on
Petitioner's Motion to Stay and Abey (ECF No. 57).
Respondents do not oppose (ECF No. 58).
challenges his 2012 state court conviction of two counts of
Possession of Child Pornography pursuant to a conditional
guilty plea. (ECF No. 41-24.) On July 27, 2016, Kinder
initiated this federal habeas proceeding pro se.
(ECF No. 1.) The Court appointed counsel and granted leave to
amend the petition. (ECF Nos. 15, 18.) Counsel filed a Second
Amended Petition (ECF No. 39) in October 2018, alleging four
grounds for relief under the Sixth and Fourteenth Amendments.
The Court granted in part and denied in part Respondents'
motion to dismiss, finding that the second amended petition
contains one unexhausted claim-Ground 3-which alleges that
Petitioner's attorney ineffectively failed to inform him
that one count of possession was the maximum the State could
prove under Nevada law. (ECF No. 56.) Petitioner now seeks a
stay and abeyance so he may exhaust that claim in state
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:
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
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). Courts in this District have declined
to prescribe the strictest possible standard for issuance of
a stay. “[G]ood 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)). Ineffective assistance of postconviction
counsel can also constitute good cause. See Blake v.
Baker, 745 F.3d 977, 982-83 (9th Cir. 2014).
argues that good cause exists because he filed his state
habeas petition pro se and was not able to raise the
claim in Ground 3. His claim is based on Castaneda v.
Nevada, 373 P.3d 108 (Nev. 2016), in which the Nevada
Supreme Court held that a defendant's simultaneous
possession at one time and place of multiple images depicting
child pornography “constitute[s] a single violation of
NRS 200.730.” Id. at 113. Kinder filed his
state petition in August 2015, approximately 10 months before
the Nevada Supreme Court decided Castaneda. The
Court agrees that this constitutes good cause for the failure
to first exhaust the claim in state court before filing the
federal petition. The Court further finds that the
unexhausted ground is not “plainly meritless, ”
and that Petitioner has not engaged in intentionally dilatory
litigation tactics. Accordingly, the Court will grant
Petitioner's unopposed motion for a stay and abeyance.
accordance with the foregoing, Petitioner's unopposed
Motion for Stay and Abeyance (ECF No. 57) is granted.
further ordered that this action is stayed pending exhaustion
of the unexhausted claim in the second 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 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 of Court administratively
close this action, until such time as the Court ...