Hood v. Frazier ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 PERRY ALLISON HOOD, Case No. 3:22-cv-00486-ART-CSD 4 Petitioner, Order Granting Motion to Stay, v. Denying Motion for Discovery, and 5 Administratively Closing Case FERNANDEIS FRAZIER, et al., 6 (ECF Nos. 31, 17) Respondents. 7 8 Petitioner Perry Allison Hood, through counsel the Federal Public Defender, 9 has filed a motion for stay and abeyance of this 28 U.S.C. § 2254 habeas corpus 10 matter. (ECF No. 31.) Respondents do not oppose. (Id. at 3.) Good cause 11 appearing, the Court grants the motion. 12 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed 13 limitations upon the discretion of the court to facilitate habeas petitioners’ return 14 to state court to exhaust claims. First, “stay and abeyance should be available 15 only in limited circumstances.” Rhines, 544 U.S. at 277. And the relief is “is only 16 appropriate when the district court determines there was good cause for the 17 petitioner’s failure to exhaust his claims first in state court. Id. Moreover,“it likely 18 would be an abuse of discretion for a district court to deny a stay and to dismiss 19 a mixed petition if the petitioner had good cause for his failure to exhaust, his 20 unexhausted claims are potentially meritorious, and there is no indication that 21 the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. 22 The Ninth Circuit has held that the application of an “extraordinary 23 circumstances” standard does not comport with the “good cause” standard 24 prescribed by Rhines. See Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). 25 The court may stay a petition containing both exhausted and unexhausted claims 26 if: (1) the habeas petitioner has good cause; (2) the unexhausted claims are 27 potentially meritorious; and (3) petitioner has not engaged in dilatory litigation 28 tactics. See Rhines, 544 U.S. at 278; see also Wooten v. Kirkland, 540 F.3d 1019, 1 1023-24 (9th Cir. 2008). 2 Here, Hood explains that his previous § 2254 habeas petition was 3 dismissed as untimely. Hood v. Frazier, 2:22-cv-00117-CDS-VCF (Hood I). In 4 dismissing the petition, the court noted that Hood did not argue that he was 5 actually innocent. (Id. at ECF No. 9.) Hood has filed a motion for relief from 6 judgment pursuant to Rule 60(b)(6) in the first case. (Id. at ECF No. 12.) He argues 7 in that motion that the petition should not have been dismissed as untimely 8 because he can show he is actually innocent based on newly presented evidence. 9 He therefore seeks a stay in this case and suspension of the briefing schedule 10 pending the resolution of his Rule 60(b)(6) motion and any further proceedings 11 in that case. (ECF No. 31.) Hood contacted counsel for Respondents, who 12 indicated that she does not oppose a stay. (Id. at 3.) Accordingly, in the interests 13 of justice and judicial economy, the Court grants the motion for a stay and 14 abeyance. The briefing schedule in this case will be suspended, and Hood’s 15 motion for discovery (ECF No. 17) will be denied as moot. 16 It is therefore ordered that Petitioner’s motion for a stay and abeyance (ECF 17 No. 31) is granted. 18 It is further ordered that this action is stayed pending final resolution of 19 Petitioner’s earlier-filed federal petition. 20 It is further ordered that the grant of a stay is conditioned upon Petitioner 21 returning to federal court with a motion to reopen the case within 45 days of the 22 resolution of the first federal petition, whether he returns to ask the Court to 23 voluntarily dismiss this Petition or to re-open this case and set a further briefing 24 schedule. 25 26 27 28 1 It is further ordered that Petitioner’s motion for discovery (ECF No. 17) is 2 || denied without prejudice as moot. 3 It is further ordered that the Clerk of Court administratively close this 4 || action, until such time as the Court grants a motion to reopen the matter. 5 6 7 DATED THIS 31st day of January 2024. 8 9 10 An os plod Tbe 11 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28