United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
pro se habeas matter comes before the Court on
Petitioner David August Kille, Sr.'s Motion for Stay and
Abeyance (ECF No. 27). Respondents do not oppose (ECF No.
challenges the Nevada Department of Corrections'
(“NDOC”) refusal to grant him educational time
credits for obtaining his G.E.D. and high school diploma
while incarcerated. The Amended Petition (ECF No. 7) alleges
two claims asserting that NDOC violated Kille's Fifth,
Eighth and Fourteenth Amendment rights to due process,
against cruel and unusual punishment, and to equal
protection. On May 13, 2019, the Court granted in part and
denied in part Respondents' motion to dismiss, finding
that Kille's petition was unexhausted in its entirety.
(ECF No. 23.) The Court ordered that within 30 days, Kille
“will either (1) move to dismiss the petition without
prejudice or (2) file a motion for other appropriate relief,
including potentially a motion to stay and abey.”
(Id. at 3.) Kille now seeks a stay and abeyance as
well as the appointment of counsel.
Kille's Motion for Stay and Abeyance
federal court cannot grant a state prisoner's petition
for writ of habeas corpus unless the petitioner has fully
exhausted available state court remedies for each of the
issues presented, or the State has expressly waived the
exhaustion issue. 28 U.S.C. § 2254(b), (c); see also
Rose v. Lundy, 455 U.S. 509 (1982). In general, a
federal district court must dismiss an unexhausted petition
without prejudice. Coleman v. Thompson, 501 U.S.
722, 731 (1991) (noting that the Supreme Court “has
long held that a state prisoner's federal habeas petition
should be dismissed if the prisoner has not exhausted
available state remedies as to any of his federal
district court is authorized to stay an unexhausted petition
in “limited circumstances” to allow a petitioner
to present unexhausted claims to the state court without
losing his right to federal habeas review due to the relevant
one-year statute of limitations. Rhines v. Weber,
544 U.S. 269, 273-75 (2005); see also Mena v. Long,
813 F.3d 907, 912 (9th Cir. 2016) (holding that district
courts have authority to stay and hold in abeyance both mixed
petitions and “fully unexhausted petitions under the
circumstances set forth in Rhines”). Under the
Rhines test, “a district court must stay a
mixed petition only if: (1) the petitioner has ‘good
cause' for his failure to exhaust his claims in state
court; (2) the unexhausted claims are potentially
meritorious; and (3) there is no indication that the
petitioner intentionally engaged in dilatory litigation
tactics.” Wooten v. Kirkland, 540 F.3d 1019,
1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at
Court has declined to prescribe the strictest possible
standard for issuance of a stay. E.g., Riner v.
Crawford, 415 F.Supp.2d 1207, 1210 (D. Nev. 2006).
“[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.” Id. Thus,
“petitioner's reasonable confusion about whether a
state filing would be timely will ordinarily constitute
‘good cause' for him to file in federal
court.” Pace v. DiGuglielmo, 544 U.S. 408, 416
(2005). Ineffective assistance of post-conviction counsel or
a lack of counsel can also constitute good cause. Blake
v. Baker, 745 F.3d 977, 982-83 (9th Cir. 2014);
Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017) (a
“statement that ‘there was no counsel' in
[the petitioner's] state post-conviction case is
sufficient to establish good cause”) (quoting
Martinez v. Ryan, 566 U.S. 1, 17 (2012)).
Ninth Circuit has acknowledged that the Rhines
“good cause” standard does not require
“extraordinary circumstances.” Wooten,
540 F.3d at 1024 (citing Jackson v. Roe, 425 F.3d
654, 661-62 (9th Cir. 2005)). But courts “must
interpret whether a petitioner has ‘good cause' for
a failure to exhaust in light of the Supreme Court's
instruction in Rhines that the district court should
only stay mixed petitions in ‘limited
circumstances'.” Wooten, 540 F.3d at 1024
(citing Jackson, 425 F.3d at 661). Courts must also
“be mindful that AEDPA aims to encourage the finality
of sentences and to encourage petitioners to exhaust their
claims in state court before filing in federal court.”
Wooten, 540 F.3d at 1024 (citing Rhines,
544 U.S. at 276-77).
Kille has failed to provide any justification for a stay and
abeyance. He requests the stay “so that he may attempt
to exhaust his due process, equal protection, and his cruel
and unusual punishment claims in the Nevada Supreme
Court.” (ECF No. 27 at 2.) This statement merely
reflects the Court's prior holding that his claims are
not exhausted. Kille's statement does not in any sense
demonstrate good cause for his failure to exhaust the claims.
Kille also fails to address the second and third
Rhines factors-he must demonstrate that his
unexhausted claims are potentially meritorious and he has not
intentionally engaged in dilatory litigation tactics. If the
Court granted a stay based upon a nonexistent showing, it
would be applying the Rhines test in a manner that
rendered stay orders not only routine but automatic, which
would undermine the goals of AEDPA and run afoul of
Rhines' instruction that a stay and abeyance is
only appropriate in limited circumstances. See
Wooten, 540 F.3d at 1024. Because Kille did not address
the requirements for a Rhines stay, his motion will
be denied without prejudice. He may renew the motion within
30 days, or his petition will be dismissed without prejudice
as wholly unexhausted.
Request for Appointment of Counsel
in Kille's motion asks this Court to appoint counsel.
There is no constitutional right to appointed counsel in a
federal habeas corpus proceeding. McClasky v. Zant,
499 U.S. 467, 495 (1991) (citing Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987) (“[T]he right to
appointed counsel extends to the first appeal of right, and
no further.”)). However, an indigent petitioner seeking
relief under 28 U.S.C. § 2254 may move the court for
appointment of representation to pursue that relief. 18
U.S.C. § 3006A(a)(2)(B). Federal courts have discretion
to appoint counsel when the interests of justice so require.
18 U.S.C. § 3006A(a)(2); see also LaMere v.
Risley, 827 F.2d 622, 626 (9th Cir. 1987). The interests
of justice so require “when the complexities of the
case are such that denial of counsel would amount to a denial
of due process.” Brown v. United States, 623
F.2d 54, 61 (9th Cir. 1980). In the absence of such
circumstances, a request for counsel in habeas proceedings is
addressed to the sound discretion of the district court.
Id. (citing Dillon v. United States, 307
F.2d 445, 447 (9th Cir. 1962)). When a habeas corpus
petitioner has a good understanding of the issues and the
ability to present forcefully and coherently his contentions,
no attorney is required. LaMere, 827 F.2d at 626.
case, the Court finds that the interests of justice do not
require the appointment of counsel. Kille has demonstrated
that he can coherently present his claims without counsel,
and his claims are not particularly complex. Indeed, Kille
has managed to file an application to proceed in forma
pauperis, several motions, and an amended habeas
petition all without the assistance of counsel. The Court
will therefore deny Kille's request.
IS THEREFORE ORDERED:
1. Petitioner David August Kille, Sr.'s Motion for Stay
and Abeyance (ECF No. 27) and request for counsel are