Dixon v. Baker, No. 14-16644 (9th Cir. 2017)
Annotate this CasePetitioner, convicted of attempted murders while he was under the influence of drug and alcohol, appealed the dismissal of his habeas petition. The court concluded that petitioner's petition was only partially exhausted and he should have been allowed to delete the unexhausted claims and proceed on the exhausted claims if his motion to stay and abey the case were denied. The court did not remand the case to allow petitioner the option of deleting his unexhausted claims because the district court should have granted his request to stay his case. Here, petitioner has established good cause because he was not represented by counsel in his state postconviction proceeding; at least one of petitioner's claims is not "plainly meritless;" and the state concedes that he has not engaged in intentionally dilatory litigation tactics. Accordingly, the court reversed and remanded with instructions.
Court Description: Habeas Corpus. The panel reversed the district court’s judgment dismissing Nevada state prisoner Terry Dixon’s habeas corpus petition and remanded with instructions to enter a stay while Dixon pursues his unexhausted claims in state court. The panel held that because Dixon’s petition was only partially exhausted, he should have been allowed to delete the unexhausted claims and proceed on the exhausted claims if his motion to stay and abey his federal case were denied. The panel did not remand the case, however, because the district court should have granted the motion for a stay since (1) Dixon, who was not represented by counsel in his state post-conviction proceeding, has established good cause for his failure to exhaust; (2) at least one of his unexhausted claims is not plainly meritless; and (3) the state concedes that he has not engaged in intentionally dilatory litigation tactics.
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