Hermanson v. Baca ( 2019 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JAMES E. HERMANSON, Case No. 3:17-cv-00721-HDM-CBC 7 Petitioner, v. ORDER 8 ISIDRO BACA, et al., 9 Respondents. 10 11 This counseled habeas matter comes before the court on 12 Petitioner James E. Hermanson’s Motion for a Stay and Abeyance 13 (ECF No. 44). Respondents did not respond to this motion and the 14 deadline to do so has expired. 15 Petitioner challenges his 2013 conviction in state court for 16 sexual assault of a child under the age of 16. (ECF No. 21 at 2). 17 On June 3, 2019, this Court granted in part Respondents’ motion 18 to dismiss the Second Amended Petition, concluding that Ground 19 Three was unexhausted. (ECF No. 43). Petitioner now seeks a 20 stay and abeyance so that he may exhaust that claim in state 21 court. 22 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court 23 placed limitations upon the discretion of the court to facilitate 24 habeas petitioners’ return to state court to exhaust claims. The 25 Rhines Court stated: 26 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively 27 excuses a petitioner’s failure to present his claims appropriate when the district court determines there 1 was good cause for the petitioner’s failure to exhaust his claims first in state court. Moreover, even if a 2 petitioner had good cause for that failure, the district court would abuse its discretion if it were to 3 grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An 4 application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the 5 applicant to exhaust the remedies available in the courts of the State”). 6 7 Rhines, 544 U.S. at 277. The Court went on to state that “it 8 likely would be an abuse of discretion for a district court to 9 deny a stay and to dismiss a mixed petition if the petitioner had 10 good cause for his failure to exhaust, his unexhausted claims are 11 potentially meritorious, and there is no indication that the 12 petitioner engaged in intentionally dilatory litigation tactics.” 13 Id. at 278. 14 The Ninth Circuit has held that the application of an 15 “extraordinary circumstances” standard does not comport with the 16 “good cause” standard prescribed by Rhines. Jackson v. Roe, 425 17 F.3d 654, 661–62 (9th Cir. 2005). This court has declined to 18 prescribe the strictest possible standard for issuance of a stay. 19 “[G]ood cause under Rhines, at least in this Circuit, should not 20 be so strict a standard as to require a showing of some extreme 21 and unusual event beyond the control of the defendant.” Riner v. 22 Crawford, 415 F. Supp. 2d 1207, 1210 (D. Nev. 2006). Thus, a 23 petitioner’s confusion over whether his petition would be timely 24 filed constitutes good cause for the petitioner to file his 25 unexhausted petition in federal court. Id. (citing Pace v. 26 DiGuglielmo, 544 U.S. 408, 416–17 (2005)). Ineffective 27 assistance of postconviction counsel can also constitute good 1 Petitioner argues that good cause exists because he was 2 reasonably confused as to whether Ground Three had been 3 exhausted. Given his multiple attempts to present this claim, or 4 at least a similar claim, to the state court by filing a motion 5 to correct illegal sentence, an appeal of the order denying that 6 motion, and a writ of prohibition, the Court finds that 7 Petitioner has established his reasonable confusion and good 8 cause exists for his failure to exhaust in state court. The 9 Court further finds that the unexhausted grounds are not “plainly 10 meritless,” and that Petitioner has not engaged in intentionally 11 dilatory litigation tactics. Accordingly, the Court will grant 12 Petitioner’s unopposed motion for a stay and abeyance. 13 In accordance with the foregoing, Petitioner’s unopposed 14 Motion for Stay and Abeyance (ECF No. 44) is GRANTED. 15 It is further ordered that this action is STAYED pending 16 exhaustion of the unexhausted claim in the second amended 17 petition. 18 It is further ordered that the grant of a stay is 19 conditioned upon Petitioner litigating his state postconviction 20 petition or other appropriate proceeding in state court and 21 returning to federal court to file a motion to reopen within 22 forty-five (45) days of issuance of the remittitur by the Supreme 23 Court of Nevada at the conclusion of the state court proceedings. 24 25 26 / / / 27 / / / 1 It is further ordered that the clerk shall ADMINISTRATIVELY 2 CLOSE this action, until such time as the court grants a motion 3 to reopen the matter. 4 IT IS SO ORDERED. 5 DATED: this 8 day of August, 2019. ° pura’ 9 ttt fAh> 7 HOWARD D. MCKIBBEN.—~—~—~CS 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28