Johnson v. Najera ( 2023 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 ERIC JOHNSON, Case No. 2:18-cv-02343-GMN-DJA 5 Petitioner, 6 ORDER v. 7 GABRIELA NAJERA, et al., 8 Respondents. 9 10 11 This action is a petition for writ of habeas corpus by Eric Johnson, who is incarcerated at 12 Nevada’s Southern Desert Correction Center serving prison sentences totaling 18 to 45 years on 13 convictions of three counts of robbery using a deadly weapon and one count of first-degree 14 kidnapping. The respondents filed a motion to dismiss (ECF No. 57) on September 6, 2022, 15 contending that all eleven claims in Johnson’s amended petition (ECF No. 40) are barred by the 16 statute of limitations and that Claims 1, 2, 3, 4, 5, 6, 7 and 9 are unexhausted in state court. 17 In response to the motion to dismiss, on December 19, 2022, Johnson, who is represented 18 in this case by appointed counsel, filed a Motion to Stay (ECF No. 64). Johnson concedes that 19 Claims 1, 2, 3, 4, 5, 6, 7, and 9 of his amended petition are unexhausted. Motion to Stay (ECF 20 No. 64), p. 2; Amended Petition for Writ of Habeas Corpus (ECF No. 40). Johnson states that he 21 initiated a habeas action in state court—his second—on December 13, 2022, in which he seeks to 22 exhaust his unexhausted claims. Motion to Stay (ECF No. 64), p. 2. Johnson’s counsel represents 23 that Respondents do not oppose the motion to stay. Ibid. Also on December 19, Johnson filed a 24 motion (ECF No. 65) requesting that the deadline for his response to the motion to dismiss be 25 vacated in view of his motion to stay. 26 Respondents did not respond to either the motion to stay or the motion to vacate the 27 deadline for response to the motion to dismiss. Their responses to those motions were due on 1 judgment). “The failure of an opposing party to file points and authorities in response to any 2 motion, except a motion under Fed. R. Civ. P. 56 or a motion for attorney’s fees, constitutes a 3 consent to the granting of the motion.” LR 7-2(d). 4 In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court circumscribed 5 the discretion of federal district courts to impose stays to facilitate habeas petitioners’ exhaustion 6 of claims in state court. The Rhines Court stated: 7 [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 8 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 9 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 10 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, 11 notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State”). 12 * * * 13 [I]t likely would be an abuse of discretion for a district court to deny a stay and to 14 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 15 the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed 16 petition. 17 Rhines, 544 U.S. at 277–78. 18 Johnson asserts in his motion to stay that there is good cause for his failure to previously 19 exhaust Claims 1, 2, 3, 4, 5, 6, 7, and 9 in state court on account of his state post-conviction 20 counsel’s failure to raise the claims and present evidence in state court in support of them. 21 Motion to Stay (ECF No. 64), pp. 3–5. Johnson asserts that those claims are not plainly 22 meritless. Id. at 5. Johnson also asserts that he has not engaged in intentionally dilatory litigation 23 tactics. Id. at 5–6. Respondents have not contested any of these assertions. 24 The Court will grant Johnson’s motion to stay and will stay this action pending 25 completion of his state-court proceedings. The Court’s intention is that this will be the last time 26 that the Court imposes a stay to facilitate Johnson’s exhaustion of claims in state court. Johnson 27 must exhaust all his unexhausted claims in state court during the stay imposed by this order. 1 IT IS THEREFORE ORDERED that Petitioner’s Motion to Stay (ECF No. 64) is 2 GRANTED. This action is stayed. The stay will remain in effect while Petitioner exhausts, in 3 state court, his unexhausted claims for habeas corpus relief. 4 IT IS FURTHER ORDERED that Respondents’ Motion to Dismiss (ECF No. 57) is 5 DENIED as moot. 6 IT IS FURTHER ORDERED that Petitioner’s Motion to Vacate Deadline 7 (ECF No. 65) is DENIED as moot. 8 IT IS FURTHER ORDERED that following the conclusion of Petitioner’s state-court 9 proceedings, Petitioner must, within 30 days, make a motion to lift the stay of this action. 10 IT IS FURTHER ORDERED that this action will be subject to dismissal, upon a 11 motion by Respondents, if Petitioner does not comply with the time limits in this order, or if he 12 otherwise fails to proceed with diligence during the stay imposed by this order. 13 IT IS FURTHER ORDERED that the Clerk of the Court is directed to administratively 14 close this case. 15 16 DATED THIS _1_1_ day of ______J__a_n_u_a_r__y_ _______, 2023. 17 18 GLORIA M. NAVARRO 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27