Rodriguez v. Johnson ( 2023 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 JESUS RODRIGUEZ RODRIGUEZ, Case No. 2:22-cv-00912-ART-DJA 5 Petitioner, Order Granting Motion for Stay and 6 v. Abeyance 7 CALVIN JOHNSON, et al., 8 Respondents. (ECF No. 10) 9 In his 28 U.S.C. § 2254 habeas corpus petition, Jesus Rodriguez Rodriguez 10 challenges his conviction pursuant to a guilty plea of attempted sexual assault of 11 a minor under 14. (ECF No. 5.) The state district court sentenced him to a term 12 of 84 to 210 months. (Id. at 2.) He now moves for a stay and abeyance of his 13 federal petition while he litigates his first state postconviction habeas petition. 14 (ECF No. 10.) The Court grants the motion for stay. 15 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed 16 limitations upon the discretion of the court to facilitate habeas petitioners’ return 17 to state court to exhaust claims. First, “stay and abeyance should be available 18 only in limited circumstances.” Rhines, 544 U.S. at 277. And the relief “is only 19 appropriate when the district court determines there was good cause for the 20 petitioner’s failure to exhaust his claims first in state court.” Id. Moreover, “it 21 likely would be an abuse of discretion for a district court to deny a stay and to 22 dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, 23 his unexhausted claims are potentially meritorious, and there is no indication 24 that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. 25 The Ninth Circuit has held that the application of an “extraordinary 26 circumstances” standard does not comport with the “good cause” standard 27 prescribed by Rhines. See Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). 28 1 || Thus, the court may stay a petition containing both exhausted and unexhausted 2 || claims, as well as a wholly unexhausted petition if: (1) the habeas petitioner has 3 || good cause; (2) the unexhausted claims are potentially meritorious; and (3) 4 || petitioner has not engaged in dilatory litigation tactics. See Rhines, 544 U.S. at 5 || 278; see also Wooten v. Kirkland, 540 F.3d 1019, 1023-24 (9th Cir. 2008); Mena 6 || v. Long, 813 F.3d 907, 912 (9th Cir. 2016). 7 Here, Rodriguez, who is represented by the Federal Public Defender, states 8 || that he has a timely first state postconviction petition pending in state district 9 || court. (ECF No. 10 at 2.) Respondents filed a notice of non-opposition to the 10 || motion to stay. (ECF No. 11.) They state that they do not waive any arguments 11 || regarding potential procedural defenses or the merits of the claims. □□□□ 12 || Accordingly, the Court grants the unopposed motion for a stay and abeyance. 13 IT IS THEREFORE ORDERED that Petitioner’s motion for a stay and 14 || abeyance (ECF No. 10) is GRANTED. 15 IT IS FURTHER ORDERED that this action is stayed pending final 16 || resolution of Petitioner’s state postconviction habeas petition. 17 IT IS FURTHER ORDERED that the grant of a stay is conditioned upon 18 || Petitioner returning to federal court with a motion to reopen the case within 45 19 || days of the issuance of the remittitur by the state appellate court at the 20 || conclusion of the state-court proceedings on the postconviction habeas petition. 21 IT IS FURTHER ORDERED that the Clerk of Court administratively close 22 || this action, until such time as the Court grants a motion to reopen the matter. 23 24 DATED THIS 14+ day of April 2023. 25 26 Aras jlosed Wen 27 ANNER TRAUM 28 UNITED STATES DISTRICT JUDGE