United States District Court, D. Nevada
P. GORDON UNITED STATES DISRICT JUDGE
Michael Dean Adkisson filed a motion to stay
decision. ECF No. 82. I will grant the motion.
Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court of the United States placed limitations upon the
discretion of the court to facilitate habeas petitioners'
return to state court to exhaust claims.
[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, “[I]t 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. The 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). The court may
stay a petition containing both exhausted and unexhausted
claims 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.
Rhines, 544 U.S. at 277; see also Wooten v.
Kirkland, 540 F.3d 1019, 1023-24 (9th Cir. 2008).
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].” Blake v. Baker, 745 F.3d 977, 982
(9th Cir. 2014). “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.” Id. An indication that the standard is
not particularly stringent can be found in Pace v.
DiGuglielmo, 544 U.S. 408 (2005), where the Supreme
Court stated 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.” Pace, 544 U.S. at 416
(citing Rhines, 544 U.S. at 278). See also
Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)
(the application of an “extraordinary
circumstances” standard does not comport with the
“good cause” standard prescribed by
Federal Public Defender (FPD) represents Adkisson in this
action. Adkisson seeks a stay while he litigates a claim
regarding the validity of his deadly weapon enhancement
sentence in state court. See Nevada Supreme Court
No. 77933. Adkisson urges that the claim contains
jurisdictional and constitutionally-based components and has
the potential to overcome state and federal procedural bars
in that it invokes subject matter jurisdiction under the
theory that the deadly weapon enhancement aggravates the
crime of second-degree murder. He also argues that the claim
became ripe only when Nevada paroled him from what he asserts
constitutes a single sentence. After reviewing the
state-court pleadings, the FPD intervened in the state-court
respondents have answered the operative federal petition. ECF
No. 49. Adkisson previously asked me to briefly defer an
adjudication of the merits of the petition pending the
completion of the state-court proceedings. ECF No. 77.
Currently, the Supreme Court of Nevada docket reflects that
Adkisson's appeal of the denial of his state
postconviction petition is fully briefed. See No.
respondents oppose the stay. ECF No. 83. However, Adkisson
has made a sufficient showing that he has good cause, the
claim is potentially meritorious, and he has not engaged in
dilatory litigation tactics. In the interests of comity and
judicial efficiency, the motion for stay and abeyance of this
action is granted.
THEREFORE ORDER that the petitioner's motion for stay and
abeyance (ECF No. 82) is GRANTED.
FURTHER ORDER that this action is STAYED pending final
resolution of the petitioner's postconviction habeas
petition. This grant of a stay is conditioned upon the
petitioner returning to federal court with a motion to reopen
the 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 the postconviction habeas petition.
FURTHER ORDER the Clerk to ADMINISTRATIVELY
CLOSE this action, until a judge of ...