United States District Court, D. Nevada
RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.
the Court in this capital habeas corpus action is a motion
filed by the petitioner, Tamir Hamilton, requesting that the
action be stayed while he exhausts claims in state court (ECF
No. 27). The Court will grant the motion, and stay this case
while Hamilton completes his state-court litigation.
was convicted in Nevada's Second Judicial District Court
(Washoe County) of murder with the use of a deadly weapon and
sexual assault with the use of a deadly weapon and was
sentenced to death for the murder and two consecutive terms
of life in prison with the possibility of parole after ten
years for the sexual assault. See Am. Pet. for Writ
of Habeas Corpus 2, ECF No. 22; J. of Conviction, Ex. 3, ECF
an unsuccessful direct appeal and state habeas action,
Hamilton initiated this federal habeas corpus action on
November 21, 2018. The Court appointed the Federal Public
Defender for the Eastern District of Pennsylvania
(“FPD”) to represent Hamilton (ECF No. 11), and
on October 7, 2019, Hamilton filed a counseled Amended
Petition for Writ of Habeas Corpus (ECF No. 22).
filed the instant Motion for Stay on November 12, 2019 (ECF
No. 27). Hamilton represents that Respondents do not oppose
the motion, and indeed, Respondents did not respond to it.
Hamilton further represents that he has initiated a second
habeas petition in state court. See ECF No. 27 at 4.
Rhines v. Weber, 544 U.S. 269 (2005), the United
States Supreme Court circumscribed the discretion of federal
district courts to impose stays to facilitate habeas
petitioners' exhaustion of claims in state court. The
Rhines Court stated that stay and abeyance should
only be granted in “limited circumstances” and as
such, is only appropriate when good cause has been found for
the failure to exhaust and the unexhausted claims are not
“plainly meritless.” 544 U.S. at 277. The Court
further stated however, that “On the other hand, 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. When
such is the case, the mixed petition should be stayed, rather
than dismissed. Id.
does not state or suggest that every unexhausted claim in the
petition must individually satisfy the “good
cause” and “potentially meritorious”
requirements for a stay. If a stay is warranted with respect
to any single claim, the Court need not conduct a
claim-by-claim analysis with regard to the remaining claims.
The Court focuses on Claims 2, 3 and 4 of Hamilton's
Amended Petition, which are claims that Hamilton's
federal constitutional rights were violated as a result of
ineffective assistance of his trial counsel. See ECF
No. 22 at 49-73; ECF No. 27 at 5-9.
states that Claims 2, 3 and 4 are unexhausted in state court.
Id. Hamilton has shown - and Respondents do not
dispute - that the Amended Petition is a “mixed
petition, ” meaning it contains both exhausted and
unexhausted claims. A federal court may not grant habeas
corpus relief on a claim not exhausted in state court. 28
U.S.C. § 2254(b). The exhaustion doctrine is based on
the policy of federal-state comity and is intended to allow
state courts the initial opportunity to correct
constitutional deprivations. See Picard v. Conner,
404 U.S. 270, 275 (1971).
the question of cause for his failure to exhaust Claims 2, 3
and 4 in his first state habeas action, Hamilton asserts that
the attorney who handled his first state habeas action
performed ineffectively by failing to present the claims of
ineffective assistance of counsel in Claims 2, 3 and 4. ECF
No. 27 at 5-9.
Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme
Court held that “[w]here, under state law, claims of
ineffective assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in
the initial-review collateral proceeding, there was no
counsel or counsel in that proceeding was ineffective.”
566 U.S. at 17. In Blake v. Baker, 745 F.3d 977 (9th
Cir. 2014), the Court of Appeals held that the sort of
ineffective assistance of counsel in an initial-review
collateral proceeding described in Martinez can
constitute good cause for a Rhines stay. See
Blake, 745 F.3d at 982-84.
the Court finds that Hamilton has shown good cause under
Rhines for his failure to fully exhaust Claims 2, 3
and 4 in state court. The Court further finds that Claims 2,
3 and 4 are potentially meritorious and that there is no
indication that Hamilton has engaged in intentionally
dilatory litigation tactics. Therefore, the requirements for
a stay of this action pending exhaustion of Hamilton's
claims in state court, as set forth in Rhines, are
exercising its discretion to grant the stay, the Court takes
into account the Nevada Supreme Court's holding in
Crump v. Warden, 934 P.2d 247 (1997), under which
there is a possibility that the Nevada courts may consider
Hamilton's unexhausted claims on their merits upon a
showing that his prior post-conviction counsel was
Court will not again impose a stay to facilitate
Hamilton's exhaustion of claims in state court. Hamilton
must exhaust all of his unexhausted claims in state court
during the stay imposed under this Order.
IS THEREFORE ORDERED that Petitioner's Motion
for Stay (ECF No. 27) is GRANTED. This
action is STAYED while Petitioner exhausts
his unexhausted ...