Alfaro v. Johnson
Opinion
3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 RENE GEOVANY ALFARO, Case No. 2:21-cv-01831-RFB-DJA
6 Petitioner, v. ORDER 7 WARDEN CALVIN JOHNSON, et al., 8 Respondents. 9 10 This habeas matter is before the Court on Petitioner Rene Geovany Alfaro’s Response to 11 Order to Show Cause (ECF No. 8) and Motion for Appointment of Counsel (ECF No. 3). 12 Discussion 13 As stated in the Court’s order to show cause, Alfaro challenges a conviction and sentence 14 imposed by the Eighth Judicial District Court for Clark County (“state court”). State of Nevada v. 15 Rene Geovany Alfaro, Case No. C-16-314818-1. On April 17, 2019, the state court entered a 16 judgment of conviction for voluntary manslaughter with use of a deadly weapon and ownership or 17 possession of firearm by prohibited person. Alfaro appealed and the Nevada Court of Appeals 18 reversed and remanded to the state district court with instructions to conduct a restitution hearing. 19 On October 20, 2020, the state court entered an amended judgment of conviction and sentenced 20 Alfaro to 48 to 120 months for voluntary manslaughter with a consecutive enhancement of 48 to 21 120 months for the use of a deadly weapon as well as a concurrent term of 28 to 72 months for the 22 ownership or possession of firearm by prohibited person. 23 On January 27, 2020, Alfaro filed a state petition for writ of habeas corpus. Rene Alfaro 24 v. Brian Williams, Case No. A-20-809250-W. The state court denied post-conviction relief. On 25 February 2, 2022, Alfaro filed another state petition for writ of habeas corpus. Rene Alfaro v. 26 Calvin Johnson, Case No. A-22-847660-W. It appears this matter remains pending in state court. 27 Alfaro acknowledged that he has not presented any claims alleged in his federal habeas petition to 28 the Nevada appellate courts. The Court instructed Alfaro to show cause why this action should not 1 be dismissed because of his failure to exhaust in state court. ECF No. 8. In addition, the Court 2 informed Alfaro that federal courts are authorized to stay an unexhausted petition to allow a 3 petitioner to present unexhausted claims to the state court without losing his right to federal habeas 4 review due to the relevant one-year statute of limitations. Rhines v. Weber, 544 U.S. 269, 273–75 5 (2005). 6 In his response, Alfaro asserts that he filed a state post-conviction habeas petition and has 7 been appointed counsel. ECF No. 10 at 5. Alfaro asserts that he was unable to get into contact with 8 his counsel and that he did not realize he did not exhaust his habeas claims in state court until he 9 reviewed the federal form petition. Id. at 4. Based on his trial counsel’s representations, he 10 believed he had until June 29, 2021 to file a petition. Id. at 3. He further requests a stay to exhaust 11 his claims in state court. Id. at 2, 5. 12 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed limitations upon the 13 district courts’ discretion to facilitate habeas petitioners’ return to state court to exhaust claims: 14 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to present his claims first 15 to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims 16 first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his 17 unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An 18 application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the 19 courts of the State”). 20 Id. at 277 (emphasis added). The Rhines Court further held that a district court would likely abuse 21 its discretion by denying a stay and dismissing a mixed petition “if the petitioner had good cause 22 for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no 23 indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. 24 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does not 25 require “extraordinary circumstances.” Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008); 26 Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005). This Court has declined to prescribe the 27 strictest possible standard for issuance of a stay. E.g., Riner v. Crawford, 415 F. Supp. 2d 1207, 28 1210 (D. Nev. 2006). “[G]ood cause under Rhines, at least in this Circuit, should not be so strict 1 a standard as to require a showing of some extreme and unusual event beyond the control of the 2 defendant.” Id. Thus, a petitioner’s confusion over whether his petition would be timely filed 3 constitutes good cause for the petitioner to file his unexhausted petition in federal court. Id. (citing 4 Pace v. DiGuglielmo, 544 U.S. 408, 416–17 (2005)). Ineffective assistance of post-conviction 5 counsel or a lack of counsel can also constitute good cause. Blake v. Baker, 745 F.3d 977, 982– 6 83 (9th Cir. 2014); Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017) (a “statement that ‘there was 7 no counsel’ in [the petitioner’s] state post-conviction case is sufficient to establish good cause”) 8 (quoting Martinez v. Ryan, 566 U.S. 1, 17 (2012)). 9 The Court finds good cause exists based on Alfaro’s confusion over whether his petition 10 would be timely filed. The Court further finds that the unexhausted grounds are not “plainly 11 meritless,” and that Alfaro has not engaged in intentionally dilatory litigation tactics. Because 12 Alfaro has satisfied Rhines, this habeas action will be stayed and held in abeyance until he has 13 presented his claims to the Nevada courts. 14 IT IS THEREFORE ORDERED: 15 1. Petitioner’s Motion for Appointment of Counsel (ECF No. 3) is DENIED without 16 prejudice. 17 2. Petitioner’s request for a stay and abeyance is GRANTED. This action is STAYED 18 pending exhaustion of the unexhausted claims in the petition. 19 3. The stay is conditioned upon Petitioner litigating his state petition or other appropriate 20 proceeding in state court and returning to federal court with a motion to reopen within 21 45 days of issuance of the remittitur by the Supreme Court of Nevada or Nevada Court 22 of Appeals at the conclusion of the state court proceedings.1 23 4. The Clerk of Court is directed to ADMINISTRATIVELY CLOSE this action, until 24 such time as this Court grants a motion to reopen the matter. 25 5. The Clerk of the Court is directed to add Aaron Ford, Attorney General of the State of 26 Nevada, as counsel for Respondents and to provide Respondents an electronic copy of 27 1 If certiorari review will be sought or thereafter is being sought, either party may move to extend the stay 28 for the duration of such proceedings. Cf. Lawrence v. Florida, 549 U.S. 327, 335 (2007). 1 all items previously filed in this case by regenerating the Notice of Electronic Filing to 2 the office of the AG only.
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