Doten v. Palmer et al
Filing
29
ORDERED that P's 24 Motion for issuance of stay and abeyance order under Rhines v. Weber is GRANTED. IT IS FURTHER ORDERED that this action is STAYED pending exhaustion of the unexhausted claims. P may move to reopen the matter followi ng exhaustion of the claims. IT IS FURTHER ORDERED that the grant of a stay is conditioned upon P 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 fede ral court with a motion to reopen within 45 days of issuance of the remittitur by the Supreme Court of Nevada. 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. (Copies have been distributed pursuant to the NEF - DRM)
<![CDATA[
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Michael A. Doten, a Nevada state prisoner. On November 13, 2009, this Court granted respondents' motion to dismiss, finding that Grounds One, Three, Four, Six, and a portion of Ground Five of the federal habeas petition are unexhausted. (Docket #21). The Court gave petitioner the option of abandoning his unexhausted claims and proceeding on his exhausted claims, or in the alternative, to seek a stay under Rhines v. Weber, 544 U.S. 269 (2005). (Docket #21). Petitioner has filed a motion for issuance of a stay and abeyance order under Rhines v. Weber, so that he might return to state court to exhaust the unexhausted grounds of his habeas petition. (Docket #24). MICHAEL A. DOTEN, ) ) Petitioner, ) ) vs. ) ) JACK PALMER, et al., ) ) Respondents. ) ____________________________________/
3:08-cv-0642-ECR-RAM ORDER
1 2 3 4 5 6 7 8 9
In 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: [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 the State"). Rhines, 544 U.S. at 277. The Court went on to state that, "[I]t likely would be an abuse of
10 discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner 11 had good cause for his failure to exhaust, his unexhausted claims are potentially 12 meritorious, and there is no indication that the petitioner engaged in intentionally dilatory 13 litigation tactics." Id. at 278. 14 The Ninth Circuit has held that the application of an "extraordinary 15 circumstances" standard does not comport with the "good cause" standard prescribed by 16 17 prescribe the strictest possible standard for issuance of a stay. "[I]t would appear that good 18 cause under Rhines, at least in this Circuit, should not be so strict a standard as to require a 19 showing of some extreme and unusual event beyond the control of the defendant." Riner v. 20 Crawford, 415 F. Supp.2d 1207, 1210 (D. Nev. 2006). Thus, a petitioner's confusion over 21 whether or not his petition would be timely filed constitutes good cause for the petitioner to 22 file his unexhausted petition in federal court. See Riner v. Crawford, 412 F. Supp.2d at 23 1210 (citing Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005)). 24 25 26 2 Rhines. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). This Court has declined to
1
In the instant case, this Court finds that petitioner has demonstrated good
2 cause under Rhines for the failure to exhaust Grounds One, Three, Four, Five, and Six of 3 his federal habeas petition. Further, the grounds are not "plainly meritless" under the 4 second prong of the Rhines test. Finally, there is no indication that petitioner engaged in 5 dilatory litigation tactics. This Court concludes that petitioner has satisfied the criteria for a 6 stay under Rhines. 7 IT IS THEREFORE ORDERED that petitioner's motion (Docket #24) for issuance
8 of stay and abeyance order under Rhines v. Weber is GRANTED. 9 IT IS FURTHER ORDERED that this action is STAYED pending exhaustion of
10 the unexhausted claims. Petitioner may move to reopen the matter following exhaustion of the 11 claims. 12 IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner
13 filing a state post-conviction petition or other appropriate proceeding in state court within forty-five 14 (45) days from the entry of this order and returning to federal court with a motion to reopen within 15 forty-five (45) days of issuance of the remittitur by the Supreme Court of Nevada at the conclusion 16 of the state court proceedings. 17 IT IS FURTHER ORDERED that the Clerk shall ADMINISTRATIVELY
18 CLOSE this action, until such time as the Court grants a motion to reopen the matter. 19 20 21 22 23 24 25 26 3 UNITED STATES DISTRICT JUDGE Dated this 5th day of April, 2010.
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
