McKendrick v. Gittere ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 SEAN MCKENDRICK, Case No. 3:22-cv-00165-LRH-CSD 6 Petitioner, v. ORDER 7 WILLIAM REUBART, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Petitioner Sean McKendrick’s Motion to Seal 11 (ECF No. 19) and Motion to Stay Case (ECF No. 20). Also before the Court is Respondents’ 12 Motion to Extend Time (ECF No. 24). For the reasons discussed below, Petitioner’s Motion to 13 Seal and Motion to Stay Case are granted. Respondents’ Motion to Extend Time (ECF No. 24) is 14 denied as moot. 15 I. Background 16 Petitioner challenges a 2019 judgment of conviction and sentence imposed by the Eighth 17 Judicial District Court for Clark County (“state district court”). The state court sentenced Petitioner 18 to life with the possibility of parole after 10 years under the large habitual statute. Petitioner 19 appealed and the Nevada Court of Appeals affirmed the judgment of conviction. 20 On October 29, 2020, Petitioner filed a state habeas petition seeking post-conviction relief 21 and requested appointment of counsel. The state district court denied Petitioner’s motion for 22 appointment of counsel as well as his habeas petition. On February 23, 2022, the Nevada Court 23 of Appeals affirmed the denial of the state habeas petition. Petitioner initiated his federal habeas 24 action pro se on April 8, 2022. (ECF No. 1-1.) Following appointment of counsel, Petitioner filed 25 his first amended petition. (ECF No. 16.) 26 II. Discussion 27 a. Motion to Seal 28 Petitioner seeks leave to seal medical records from the Nevada Department of Corrections, 1 Exhibit 12 (ECF No. 18). The need to protect medical privacy qualifies as a “compelling reason” 2 for sealing records. E.g., Abbey v. Hawaii Employers Mut. Ins. Co. (HEMIC), 760 F. Supp. 2d 3 1005, 1013 (D. Haw. 2010). Here, Exhibit 12 contains Petitioner’s sensitive health information, 4 including his medical kites, lab tests, prescription medications, physician’s orders, and progress 5 notes. Having reviewed and considered the matter in accordance with Kamakana v. City and 6 County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and its progeny, the Court finds that a 7 compelling need to protect Petitioner’s medical privacy outweighs the public interest in open 8 access to court records. Accordingly, Petitioner’s motion (ECF No. 19) is granted, and Exhibit 12 9 (ECF No. 18) is considered properly filed under seal. 10 b. Motion to Stay Case 11 Petitioner seeks a stay and abeyance to exhaust Grounds 1(A) and 1(C). (ECF No. 20.) 12 Federal courts may not grant a writ of habeas corpus brought by a person in custody pursuant to a 13 state court judgment unless “the applicant has exhausted the remedies available in the courts of 14 the State.” 28 U.S.C. § 2254(b)(1)(A). This exhaustion requirement is “grounded in principles of 15 comity” as it gives states “the first opportunity to address and correct alleged violations of state 16 prisoner’s federal rights.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). In general, a federal 17 district court must dismiss an unexhausted petition without prejudice. Coleman, 501 U.S. at 731 18 (noting that the Supreme Court “has long held that a state prisoner’s federal habeas petition should 19 be dismissed if the prisoner has not exhausted available state remedies as to any of his federal 20 claims”); Castille v. Peoples, 489 U.S. 346, 349 (1989) (habeas petitions should be dismissed if 21 state remedies have not been exhausted as to any federal claims). 22 A district court is authorized to stay an unexhausted petition in “limited circumstances,” to 23 allow a petitioner to present unexhausted claims to the state court without losing his right to federal 24 habeas review due to the relevant one-year statute of limitations. Rhines v. Weber, 544 U.S. 25 269, 273–75 (2005); Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that district courts 26 have authority to stay and hold in abeyance both mixed petitions and “fully unexhausted petitions 27 under the circumstances set forth in Rhines”). Under the Rhines test, “a district court must stay a 28 mixed petition only if: (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in 1 state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication 2 that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 3 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 4 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does not 5 require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. Roe, 425 F.3d 6 654, 661–62 (9th Cir. 2005)). But courts “must interpret whether a petitioner has ‘good cause’ for 7 a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the district court 8 should only stay mixed petitions in ‘limited circumstances’.” Wooten, 540 F.3d at 1024 9 (citing Jackson, 425 F.3d at 661). Courts must also “be mindful that AEDPA aims to encourage 10 the finality of sentences and to encourage petitioners to exhaust their claims in state court before 11 filing in federal court.” Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 276–77). 12 A statement that a habeas petitioner was pro se during his state post-conviction 13 proceedings is sufficient to constitute good cause for failing to exhaust claims. Dixon v. Baker, 14 847 F.3d 714, 721 (9th Cir. 2017) (citing Martinez v. Ryan, 566 U.S. 1, 17 (2012)). “A petitioner 15 who is without counsel in state postconviction proceedings cannot be expected to understand the 16 technical requirements of exhaustion and should not be denied the opportunity to exhaust a 17 potentially meritorious claim simply because he lacked counsel.” Dixon, 847 F.3d at 721. 18 Petitioner has shown good cause for his failure to exhaust his claims in state court. 19 Petitioner citing Martinez argues that good cause exists because he was not represented by post- 20 conviction counsel. (ECF No. 20 at 4.) He further asserts that although he raised Ground 1(A) in 21 his pro se petition, he lacked any resources to investigate the claim. (Id.) The Court finds that 22 Petitioner has established good cause exists for his failure to exhaust in state court. The Court 23 further finds that the unexhausted grounds are not “plainly meritless,” and that Petitioner has not 24 engaged in intentionally dilatory litigation tactics. Accordingly, the Court will grant Petitioner’s 25 motion for stay and abeyance to exhaust Grounds 1(A) and 1(C) in state court. 26 IT IS THEREFORE ORDERED that Petitioner’s Motion to Seal (ECF No. 19) is 27 GRANTED. 28 IT IS FURTHER ORDERED that Petitioner’s Motion to Stay Case (ECF No. 20) is 1 || GRANTED. 2 IT IS FURTHER ORDERED that Respondents’ Motion to Extend Time (ECF No. 24) is 3 || DENIED as moot. 4 IT IS FURTHER ORDERED that this action is STAYED pending exhaustion of Grounds 5 || 1(A) and 1(C) in the first amended petition for writ of habeas corpus. 6 IT IS FURTHER ORDERED that the grant of a stay is conditioned upon Petitioner filing, 7 || if same is not already pending, a state post-conviction petition or other appropriate proceeding in 8 || state district court within forty-five (45) days of entry of this order and returning to federal court 9 || with a motion to reopen within forty-five (45) days of issuance of the remittitur by the Supreme 10 || Court of Nevada at the conclusion of all state court proceedings.! 11 IT IS FURTHER ORDERED that, with any motion to reopen filed following completion 12 || ofall state court proceedings pursued, Petitioner: (a) shall attach supplemental exhibits containing 13 || the new state court pleadings and the state court written decisions thereon; and (b) if Petitioner 14 || intends to amend the federal petition, shall file a motion for leave to amend along with the proposed 15 || verified amended petition or a motion for extension of time to move for leave. 16 IT IS FURTHER ORDERED that the Clerk of Court shall ADMINISTRATIVELY 17 || CLOSE this action until such time as the Court grants a motion to reopen the matter. 18 IT IS FURTHER ORDERED that the Court will reset the briefing schedule upon reopening 19 || the case and lifting the stay. No claims are dismissed by this order, and a reopened action will 20 || proceed under the same docket number. 21 DATED this 30" day of May, 2023. 22 - 23 L Y R. HICKS 24 UNITED STATES DISTRICT JUDGE 25 26 — ‘Tf certiorari review will be sought or thereafter is being sought, either party may move to extend the stay for the duration of such proceedings. Cf Lawrence v. Florida, 549 U.S. 327, 335 28 || (2007).