Clemons v. Williams et al
Filing
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ORDER Granting 29 Petitioner's Motion to Stay and Abey Proceedings. Petitioner may move to reopen the matter following exhaustion of the claims. IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner filing a state post -conviction petition or other appropriate proceeding in state court within 45 days from the entry of this order 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. The Clerk shall ADMINISTRATIVELY CLOSE this action. Signed by Judge Philip M. Pro on 02/20/2013. (Copies have been distributed pursuant to the NEF - AC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DE’MARIAN CLEMONS,
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Petitioner,
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vs.
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BRIAN E. WILLIAMS, SR., et al.,
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Respondents.
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2:11-cv-01442-PMP-GWF
ORDER
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This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by De’Marian
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Clemons, a Nevada prisoner. On December 26, 2012, the court granted respondents’ motion to dismiss
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in part, concluding that several grounds are unexhausted (ECF #28). On January 14, 2013, petitioner
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filed a motion to stay and abey proceedings under Rhines v. Weber (ECF #29), and respondents filed an
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opposition (ECF #30).
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In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed limitations upon the
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discretion of the court to facilitate habeas petitioners’ return to state court to exhaust claims. The Rhines
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Court stated:
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[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
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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 the State”).
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”
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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 has declined to prescribe the strictest possible standard for
issuance of a stay. “[I]t would appear that good 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 or not his petition would be timely filed constitutes good cause for the
petitioner to file his unexhausted petition in federal court. See Riner v. Crawford, 412 F. Supp.2d at
1210 (citing Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005)). However, the Ninth Circuit has also
held that a petitioner’s “impression” that his counsel had exhausted an unexhausted claim did not
constitute “good cause” for failure to exhaust that claim. Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th
Cir. 2008).
Here, in petitioner’s motion for stay and abeyance, he merely states that he moves for
a stay in order that he may return to state court to exhaust his unexhausted claims (ECF #29 at 2).
However, the unexhausted grounds are not “plainly meritless” under the second prong of the Rhines
test, and there is no indication that petitioner engaged in dilatory litigation tactics. Accordingly, this
court concludes that the balance of the Rhines factors narrowly tips in favor of a stay. He shall be
granted a stay and abeyance under Rhines.
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IT IS THEREFORE ORDERED that petitioner’s motion to stay
and abey
proceedings (ECF #29) is GRANTED.
IT IS FURTHER ORDERED that this action is STAYED pending exhaustion of the
unexhausted claims. Petitioner may move to reopen the matter following exhaustion of the claims.
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IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner
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filing a state post-conviction petition or other appropriate proceeding in state court within forty-five
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(45) days from the entry of this order and returning to federal court with a motion to reopen within
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forty-five (45) days of issuance of the remittitur by the Supreme Court of Nevada at the conclusion of
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the state court proceedings.
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IT IS FURTHER ORDERED that the Clerk shall ADMINISTRATIVELY CLOSE
this action, until such time as the court grants a motion to reopen the matter.
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20th day of February, 2013.
DATED this _____ day of ______________________________, 2013.
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UNITED STATES DISTRICT JUDGE
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