Wallen v. Reubart ( 2024 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * Case No. 2:24-cv-00717-MMD-DJA 6 Heather L. Wallen, 7 Petitioner, ORDER 8 v. 9 William Reubart, et al., 10 Respondents. 11 12 Heather L. Wallen has submitted a pro se petition for a writ of habeas corpus 13 pursuant to 28 U.S.C. § 2254 and has now paid the filing fee. (ECF Nos. 1-1, 4.) The 14 Clerk of Court will be ordered to docket the petition. Having screened the petition under 15 Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254, the Court 16 concludes that the petition contains factual allegations that demonstrate the possibility of 17 constitutional error and, therefore, will direct the Clerk to serve it on Respondents. For 18 reasons discussed below, however, Respondents will not be required to respond to the 19 petition pending a determination of whether Wallen can show cause as to why the petition 20 should not be dismissed as unexhausted or why this action should be stayed. 21 Wallen challenges a judgment of conviction entered in the Fifth Judicial District 22 Court of and for Nye County, Nevada, finding her guilty, pursuant to a guilty plea, of 23 conspiracy to commit burglary and battery causing substantial harm. (ECF No. 1-1 at 1.) 24 She was adjudicated a habitual criminal. The Nevada Court of Appeals entered its order 25 affirming the judgment on May 11, 2023.1 It appears from Wallen’s federal petition that 26 she did not file a state petition for postconviction relief. 27 1The Court takes judicial notice of the order entered by the Nevada Court of 28 Appeals affirming Wallen’s judgment of conviction on direct appeal. See Wallen v. State, 1 A federal court will not grant a state prisoner’s petition for habeas relief until the 2 prisoner has exhausted her available state remedies for all claims raised. See Rose v. 3 Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b). A petitioner must give the state courts 4 a fair opportunity to act on each of her claims before she presents those claims in a federal 5 habeas petition. See O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); Duncan v. Henry, 6 513 U.S. 364, 365 (1995). A claim remains unexhausted until the petitioner has given the 7 highest available state court the opportunity to consider the claim through direct appeal 8 or state collateral review proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 9 2004); Garrison v. McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). 10 On direct appeal, Wallen raised a single claim: that the district court erred by failing 11 to continue sua sponte the sentencing hearing after it did not grant her counsel’s oral 12 request at sentencing to withdraw from the case. See Wallen, No. 84826-COA. She now 13 presents three claims in her federal petition: (1) the state appellate court denied her the 14 right to a fair and impartial review; (2) the appellate court abdicated its responsibility 15 knowing the district judge entrapped petitioner and failed to abide by court rules; and (3) 16 the appellate court denied her the right to a fair review because the district court amended 17 a ten-year-old conviction and separated it into five prior convictions. None of these three 18 claims has been presented to the state appellate courts; therefore, the petition is wholly 19 unexhausted. 20 Wallen may have filed her federal petition out of concern about the time limitation 21 imposed by 28 U.S.C. § 2244(d)(1)(A). Under that provision, a state prisoner must file a 22 federal habeas petition within one year of “the date on which the judgment became final 23 by the conclusion of direct review or the expiration of the time for seeking such review.” 24 28 U.S.C. § 2244(d)(1)(A). If Wallen intends to ask this Court to stay this petition while 25 she attempts to exhaust the claims in state court, she must file a motion for stay and 26 abeyance. In Rhines v. Weber, the Supreme Court placed limitations upon the discretion 27 of the court to facilitate habeas petitioners’ return to state court to exhaust claims. See 28 544 U.S. 269 (2005). First, “stay and abeyance should be available only in limited 1 circumstances.” Id. at 277. And the relief “is only appropriate when the district court 2 determines there was good cause for the petitioner’s failure to exhaust [her] claims first 3 in state court.” Id. Moreover, “it likely would be an abuse of discretion for a district court 4 to deny a stay and to dismiss a mixed petition if the petitioner had good cause for [her] 5 failure to exhaust, [her] unexhausted claims are potentially meritorious, and there is no 6 indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. 7 The Ninth Circuit has held that the application of an ‘extraordinary circumstances’ 8 standard does not comport with the ‘good cause’ standard prescribed by Rhines. See 9 Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). A petitioner’s reasonable confusion 10 about whether a state filing would be timely will ordinarily constitute ‘good cause’ for her 11 to file in federal court and ask for a stay under Rhines.2 This Court may stay a partially or 12 wholly unexhausted petition if: (1) the habeas petitioner has good cause; (2) the 13 unexhausted claims are potentially meritorious; and (3) petitioner has not engaged in 14 dilatory litigation tactics. See Rhines, 544 U.S. at 278; see also Mena v. Long, 813 F.3d 15 907 (9th Cir. 2016); Wooten v. Kirkland, 540 F.3d 1019, 1023-24 (9th Cir. 2008). The 16 Court will give Wallen an opportunity to show cause as to why this case should not be 17 dismissed as unexhausted or to move for a stay. 18 It is therefore ordered that the Clerk of Court is directed to file and electronically 19 serve the petition (ECF No. 1-1) on Respondents and add Aaron D. Ford, Nevada 20 Attorney General, as counsel for Respondents. 21 It is further ordered that the Clerk provide Respondents with an electronic copy of 22 all items previously filed in this case by regenerating the Notice of Electronic Filing to the 23 Office of the Attorney General only. 24 It is further ordered that Petitioner has 30 days from the date that this order is 25 entered to show cause as to why her Petition should not be dismissed without prejudice 26 as unexhausted or to file a motion for stay and abeyance. Failure to respond within the 27 2It appears that, if Wallen pursues a state postconviction petition, it may be 28 procedurally barred as untimely and an abuse of the writ under state law absent a showing 1 || time allowed or show good cause for an extension will result in dismissal without prejudice 2 || and without further notice. 3 It is further ordered that all assertions of fact made by Petitioner in response to this 4 || order to show cause must be detailed, specific as to time and place, and supported by 5 || competent evidence. Petitioner should attach copies of all materials upon which she 6 || bases her argument that her petition should not be dismissed as unexhausted or that a 7 || stay is warranted. 8 It is further ordered that, if Petitioner files a motion for stay and abeyance, 9 || Respondents may oppose, and petitioner may reply as provided for in Local Rule 7-2. 10 DATED THIS 13" day of June 2024. 11 12 ( Le 13 MIRANDA M. DU 14 CHIEF UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28