Emerson v. Najera ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 PRESTON EMERSON, Case No. 2:21-cv-01215-GMN-NJK 6 Petitioner, v. ORDER 7 WILLIAM HUTCHINGS, et al., 8 Respondents. 9 10 Counseled Petitioner Preston Emerson brings this second amended habeas corpus Petition 11 (ECF No. 34) under 28 U.S.C. § 2254. Before the Court is Emerson’s Motion to Stay (ECF No. 12 52). 13 Background 14 In May 2016, the state court entered a judgment of conviction and sentenced Emerson to 15 an aggregate total of 27 years to life. ECF No. 40-50. The Nevada Supreme Court affirmed the 16 conviction. ECF No. 41-25. In January 2019, Emerson filed a state habeas Petition. ECF No. 41- 17 30. The state court denied post-conviction relief and the Nevada Supreme Court affirmed the 18 denial of relief. ECF No. 41-57. 19 In June 2021, Emerson initiated this federal habeas corpus proceeding pro se. ECF No. 1. 20 Following appointment of counsel, he filed his first and second amended federal habeas 21 Petitions. ECF Nos. 11, 34. Respondents moved to dismiss certain grounds of the Petition as 22 untimely, not cognizable, or unexhausted. ECF No. 39. The Court found Grounds 1, 3, to the 23 extent it alleges a Sixth Amendment violation, and 14 are unexhausted. ECF No. 51. Emerson 24 now moves for a stay to return to state court to exhaust his unexhausted claims. ECF No. 52. 25 Discussion 26 A district court is authorized to stay an unexhausted petition in “limited 27 circumstances,” to allow a petitioner to present unexhausted claims to the state court without 28 losing his right to federal habeas review due to the relevant one-year statute of limitations. 1 Rhines v. Weber, 544 U.S. 269, 273–75 (2005); Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2 2016) (holding that district courts have authority to stay and hold in abeyance both mixed 3 petitions and “fully unexhausted petitions under the circumstances set forth in Rhines”). 4 Under the Rhines test, “a district court must stay a mixed petition only if: (1) the petitioner 5 has ‘good cause’ for his failure to exhaust his claims in state court; (2) the unexhausted claims 6 are potentially meritorious; and (3) there’s no indication that the petitioner intentionally engaged 7 in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 8 2008) (citing Rhines, 544 U.S. at 278). 9 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does not 10 require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. Roe, 425 11 F.3d 654, 661–62 (9th Cir. 2005)). But courts “must interpret whether a petitioner has ‘good 12 cause’ for a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the 13 district court should only stay mixed petitions in ‘limited circumstances’.” Wooten, 540 14 F.3d at 1024 (citing Jackson, 425 F.3d at 661). Courts must also “be mindful that AEDPA aims 15 to encourage the finality of sentences and to encourage petitioners to exhaust their claims in state 16 court before filing in federal court.” Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 276– 17 77). 18 A statement that a habeas petitioner was pro se during his state postconviction 19 proceedings is sufficient to constitute good cause for failing to exhaust claims. Dixon v. Baker, 20 847 F.3d 714, 721 (9th Cir. 2017) (citing Martinez v. Ryan, 566 U.S. 1, 17 (2012)). “A 21 petitioner who is without counsel in state postconviction proceedings cannot be expected to 22 understand the technical requirements of exhaustion and should not be denied the opportunity to 23 exhaust a potentially meritorious claim simply because he lacked counsel.” Dixon, 847 24 F.3d at 721. 25 Emerson has shown good cause for not exhausting his claims earlier by alleging that his 26 post-conviction attorney rendered ineffective assistance for failure to investigate. See Blake v. 27 Baker, 745 F.3d 977, 982-83 (9th Cir. 2014) (finding that ineffective assistance of postconviction 28 counsel or a lack of postconviction counsel can constitute good cause under Rhines.) In addition, 1 Emerson demonstrates that he acquired new evidence supporting his claim of actual innocence 2 after he filed his habeas petition and that he can overcome all applicable procedural bars because 3 he has newly presented evidence of actual innocence. 4 Moreover, Emerson establishes that “at least one of his unexhausted claims is not ‘plainly 5 meritless.’” Dixon, 847 F.3d at 722. He alleges that three of the victims have recently affirmed 6 that another individual, not Emerson, was the shooter and argues that the witnesses identifying 7 Emerson as the shooter were unreliable. There is also no indication that Emerson has 8 intentionally engaged in dilatory litigation tactics. Accordingly, the Court will grant Emerson’s 9 Motion. The stay is conditioned on Emerson litigating his state habeas Petition or other 10 appropriate proceeding in state court. 11 Conclusion 12 It is therefore ordered that Petitioner Preston Emerson’s Motion to Stay (ECF No. 52) is 13 granted. 14 It is further ordered that this action is STAYED pending exhaustion of the unexhausted 15 claims in the amended Petition. 16 It is further ordered that the grant of a stay is conditioned upon Emerson filing, if same is 17 not already pending, a state post-conviction petition or other appropriate proceeding in state 18 district court within forty-five (45) days of entry of this order and returning to federal court with 19 a motion to reopen within forty-five (45) days of issuance of the remittitur by the Nevada 20 appellate court at the conclusion of all state court proceedings.1 21 It is further ordered that any motion to reopen filed following completion of all state 22 court proceedings, Petitioner: (a) shall attach supplemental exhibits containing the new state 23 court pleadings and the state court written decisions thereon; and (b) if Petitioner intends to 24 /// 25 /// 26 /// 27 1 If certiorari review will be sought or thereafter is being sought, either party may move to extend 28 the stay for the duration of such proceedings. Cf. Lawrence v. Florida, 549 U.S. 327, 335 (2007). 1 || amend the federal petition, shall file a motion for leave to amend along with the proposed 2 || amended petition or a motion for extension of time to move for leave. 3 It is further ordered that the Clerk of Court is directed to ADMINISTRATIVELY 4 || CLOSE this action until such time as the Court grants a motion to reopen the matter. 5 It is further ordered that the Court will reset the briefing schedule upon reopening the 6 || case and lifting the stay. 7 DATED: November 20, 2024 8 Yi, 9 10 eR M. NAVARRO NITED STATES DISTRICT JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28