PHILIP M. PRO, District Judge.
This represented habeas matter comes before the Court on Petitioner's motion (#56) to stay and motion (#58) for leave to file a fifth amended petition.
Petitioner Willie Ray Lewis challenges his 2006 Nevada state conviction, pursuant to a jury verdict, of five counts of sexual assault of a minor under sixteen years of age, three counts of lewdness with a minor under the age of fourteen, and one count of attempted sexual assault of a minor under sixteen years of age. Under the sentences imposed on the charges, the majority of which run concurrently, it appears that Petitioner first could be eligible for a parole outside an institution after a minimum of 24 years. Petitioner challenged his conviction on direct appeal and in two state post-conviction petitions.
This Court previously granted the then pro se Petitioner a stay to pursue a second state petition. The Court appointed counsel for Petitioner after he returned to federal court from the stay. In the present stay motion, the now represented Petitioner seeks a stay to return to state court to exhaust federal Ground 4(b) while seeking to file a fifth amended petition deleting unexhausted claims in Grounds 2 and 3.
Petitioner seeks a stay under Rhines v. Weber, 544 U.S. 269 (2005), to exhaust Ground 4(b). Petitioner alleges therein that he was denied effective assistance of trial counsel when counsel failed to interview the victims prior to trial.
In order to obtain a Rhines stay in order to return to the state courts to exhaust a claim, a petitioner must demonstrate that there was good cause for the failure to exhaust the claim, that the unexhausted claim is not plainly meritless, and that the petitioner has not engaged in intentionally dilatory litigation tactics. See 544 U.S. at 278.
As the Ninth Circuit recently emphasized in Blake v. Baker, 745 F.3d 977 (9th Cir. 2014), the precise contours of what constitutes "good cause" under Rhines remain to be fully developed in the jurisprudence:
745 F.3d at 980-81.
Blake firmly establishes, however, that the good cause required under Rhines cannot be more demanding than the showing of cause required under the Supreme Court's recent decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012):
745 F.3d at 983-84 & n.7 (emphasis added).
The holding in Blake leads to a finding that petitioner has good cause for the failure to exhaust in this case. A petitioner establishes cause under Martinez either by showing ineffective assistance of counsel in the initial-review collateral proceeding or by showing that counsel was not appointed in that proceeding. 132 S.Ct. at 1317 & 1320. In this case, petitioner was not appointed counsel in the first state post-conviction proceedings. He did not have post-conviction counsel to investigate and present claims of ineffective assistance of trial counsel until this Court appointed federal habeas counsel after the prior stay. Thus, during the first stay and the accompanying second state post-conviction proceedings, petitioner did not have the benefit of counsel to develop and exhaust the claim any more than he had had on his first state petition. Nor did he then have the benefit of the subsequent Martinez decision as a potential basis for overcoming procedural bars.
In this regard, Blake instructs that the fact that numerous other petitioners also might present the same basis for good cause is not material. Rhines "does not require limiting the definition of good cause to only those excuses that arise infrequently." 745 F.3d at 981-82.
The Court further rejects respondents' argument — presented pre-Blake — suggesting that the Ninth Circuit's reliance on labor law precedent in support of its holding in Jackson that extraordinary circumstances is not required is "mysterious."
The Court rejects respondents' argument that a petitioner can establish good cause only by satisfying the equitable tolling standard for overcoming a federal time-bar. That standard requires a petitioner to demonstrate extraordinary circumstances beyond the petitioner's control that made it impossible to file a timely federal habeas petition. If the Ninth Circuit has rejected — now in two opinions — an extraordinary circumstances standard, it would make no sense to then apply a standard from another context requiring a demonstration of extraordinary circumstances. If respondents wish to have Jackson — as well as, now, Blake — overruled, the proper avenue to pursue such an effort clearly is not in a district court.
Moreover, as this Court frequently has stated and the Blake panel emphasized, the good cause inquiry under Rhines is directed to only a preliminary procedural issue of whether the matter should be stayed pending further state court proceedings. The Court is reluctant to import standards from equitable tolling or procedural default case law that are designed to assess whether a claim should be dismissed with prejudice, i.e., with conclusive finality, and which on occasion may require an evidentiary hearing. Arguably, such heightened standards — directed to the question of whether, in the final analysis, a claim is conclusively barred — are inappropriate for the preliminary procedural question of whether a stay should be entered while petitioner exhausts claims in a mixed petition. It is more appropriate for the state courts to have the first opportunity to consider the application of conclusive procedural bars, as comity counsels affording the state courts an opportunity to address claims in the first instance. Cf. Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011), cert. denied, 133 S.Ct. 155 (2012)(noting that, in the circumstances presented, a stay was appropriate because it provided the state court with the first opportunity to resolve the claim). The Court is not inclined to adopt standards that potentially could require an evidentiary hearing to resolve the preliminary procedural issue presented by a request for a stay.
If the bar that must be cleared under Rhines were as high as that required to establish either equitable tolling or cause-and-prejudice, the Supreme Court and the Ninth Circuit know quite well how to invoke such established standards. To date, neither has done so. The Ninth Circuit instead has stated to the contrary in both Jackson and Blake that an "extraordinary circumstances" standard does not comport with the Rhines good-cause standard. The Ninth Circuit further held in Blake that no stronger showing is required than that required to establish cause under Martinez, while strongly suggesting that less instead need be shown.
The Court accordingly finds that good cause is established in this case.
When the Rhines Court discussed the issue of whether a petitioner has presented a claim that is not plainly meritless, the Court made a comparison cite to 28 U.S.C. § 2254(b)(2) concerning this inquiry. 544 U.S. at 277. The Ninth Circuit has held that a district court may reject an unexhausted claim on the merits pursuant to § 2254(b)(2) "only when it is perfectly clear that the applicant does not raise even a colorable federal claim." Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).
Ground 4(b) is not plainly meritless under this standard. The Court is not persuaded by respondents' arguments to the contrary. Respondents proceed on a number of factually erroneous assumptions as to the actual factual content of Ground 4(b), and it hardly is perfectly clear that petitioner cannot establish a viable claim of ineffective assistance of trial counsel on the allegations actually made in Ground 4(b).
The Court also rejects respondents' argument that it should find the claim "meritless" because it allegedly is procedurally defaulted. At the outset, "meritless" does not mean "procedurally barred." Moreover, similar to the preceding discussion, the Court rejects the invitation to conduct a full bore, conclusive procedural default inquiry, which potentially might require an evidentiary hearing, on a preliminary procedural issue of whether a stay should be entered. Here, such an inquiry potentially could entail a fact-intensive examination of whether petitioner can demonstrate prejudice from trial counsel's failure to interview the victims. Such an inquiry clearly is not contemplated under a standard seeking to determine whether "it is perfectly clear that the applicant does not raise even a colorable federal claim."
As the Court has observed in other contexts, the cause-and-prejudice and other standards applied to overcome a procedural bar are substantially the same in Nevada state court and federal court.
Finally, nothing in the record before the Court reflects that petitioner has engaged in intentionally dilatory tactics. Respondents note that petitioner already has had one opportunity for a stay. However, petitioner was unrepresented in all prior state and federal post-conviction proceedings, and Martinez had not yet held that a petitioner could demonstrate cause to overcome a procedural default of an ineffective-assistance claim if he was not appointed counsel in the initial-review collateral proceedings.The Court thus finds that petitioner has not engaged in intentionally dilatory tactics. Following consideration of the Rhines factors, petitioner's request for a stay accordingly will be granted.
The Court expresses no opinion by this order as to whether the circumstances presented satisfy the full cause-and-prejudice standard with respect to any claim of procedural default. The Court holds here only that the criteria for a stay under Rhines have been satisfied, and its holding in this order is expressly limited to that specific context.
The Court will deny the motion for leave to file another pleading and will dismiss the unexhausted claims in Grounds 2 and 3 directly.
The Court emphasizes, however, that federal habeas counsel must read and comply with the order entered in the given case.
The prior order provided in pertinent part:
IT FURTHER IS ORDERED that Petitioner shall have
#53, at 12 (italic emphasis added).
The order contemplates a quite simple procedure where: (a) if the petitioner seeks dismissal of any claims, he files a motion for full or partial dismissal; and (b) if petitioner seeks any other relief, he does so by filing a motion for such relief.
The order does not contemplate that petitioner then may seek dismissal of claims through any procedure that counsel wishes to pursue. If that were the intent of the order, it simply would refer only to a "motion for any appropriate relief" without expressly referring instead to a motion to dismiss. The order quite clearly directs that dismissal, if sought, shall be sought via a motion to dismiss.
The reference to "and/or for other appropriate relief" refers to requests for relief other than requests seeking to dismiss claims from the action. The most likely "other appropriate relief" sought would be a motion for a stay. The order does not expressly delineate all of the possible options in that regard because the case law has been evolving with enough frequency that specific directives given regarding stay procedure might not be fully complete or accurate over the potential duration of a case, including on review.
The Court will deny the motion for leave to amend and simply will dismiss the unexhausted claims in question directly. Over and above the fact that the procedure directed was not followed, counsel also did not present the proposed pleading with the motion, as required by Local Rule LR 15-1. The Court does not need — or want — to clutter the record with more pleadings simply to dismiss claims that already were specifically defined in the prior order.
IT THEREFORE IS ORDERED that petitioner's motion (#58) for leave to file a fifth amended petition is DENIED without prejudice to any interests of petitioner and that the following unexhausted claims in the fourth amended petition (#43) are DISMISSED without prejudice: (a) Ground 2 to the extent that Petitioner alleges claims of a denial of rights to compulsory process, equal protection and a reliable sentence; and (b) Ground 3 to the extent that Petitioner seeks to base a claim of cumulative error on denial of rights to compulsory process, equal protection and a reliable sentence from the trial court's denial of a defense request for a continuance.
IT IS FURTHER ORDERED that petitioner's motion (#56) to stay is GRANTED and that this action is STAYED pending exhaustion of petitioner's unexhausted claim in Ground 4(b). Petitioner may move to reopen the matter following exhaustion of the claim, and any party otherwise may move to reopen the matter at any time and seek any relief appropriate under the circumstances.
IT FURTHER IS ORDERED that the grant of a stay is conditioned upon petitioner filing a state post-conviction petition in the state district court within forty-five (45) days of entry of this order and thereafter returning to federal court with a motion to reopen within forty-five (45) days of issuance of the remittitur by the Supreme Court of Nevada at the conclusion of all state court proceedings.
IT FURTHER IS ORDERED that, with any motion to reopen filed following completion of all state court proceedings pursued, petitioner: (a) shall attach an indexed chronological set of exhibits (with the corresponding CM/ECF attachments identified by exhibit number(s) on the docketing system) containing the state court record materials relevant to the issues herein that cover the period between the state court record exhibits on file in this matter and the motion; and (b) if petitioner then intends to further amend the petition, shall file a motion for leave to amend along with the proposed verified amended petition or a motion for extension of time to move for leave. Respondents shall have thirty (30) days to file a response to the motion(s) filed. The reopened matter will proceed under the current docket number.
IT FURTHER IS ORDERED that any further hard copies of exhibits shall be sent — for any further proceedings this case — to the Clerk's Office in Reno. Counsel need not resend any copies sent previously instead to Las Vegas.
IT FURTHER IS ORDERED that the Clerk of the Court shall ADMINISTRATIVELY CLOSE this action until such time as the Court grants a motion to reopen the matter.
