Augborne v. Williams

Opinion

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7 DISTRICT OF NEVADA

8 * * * 9 BRIT FANUEL AUGBORNE, III, Case No. 2:19-cv-01204-KJD-BNW

10 Petitioner, ORDER

11 v. 12 BRIAN WILLIAMS, et al., 13 Respondents. 14 15 Before the court is a motion to stay and abey Brit Fanuel Augborne, III’s pro se 16 28 U.S.C. § 2254 habeas corpus petition (ECF No. 39). Respondents opposed (ECF 17 No. 41). As discussed below, the motion is denied. 18 This court may stay a petition that is either wholly unexhausted or contains both 19 exhausted and unexhausted claims if: (1) the habeas petitioner has good cause; (2) the 20 unexhausted claims are potentially meritorious; and (3) petitioner has not engaged in 21 dilatory litigation tactics. Mena v. Long, 813 F.3d 907, 908 (9th Cir. 2016); Rhines v. 22 Weber, 544 U.S. 269, 277 (2005); Gonzalez v. Wong, 667 F.3d 965, 977–80 (9th Cir. 23 2011). “[G]ood cause turns on whether the petitioner can set forth a reasonable 24 excuse, supported by sufficient evidence, to justify [the failure to exhaust a claim in 25 state court].” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “While a bald assertion 26 cannot amount to a showing of good cause, a reasonable excuse, supported by 27 evidence to justify a petitioner's failure to exhaust, will.” Id. 1 Augborne’s petition is wholly unexhausted (see ECF No. 15). In several separate 2 orders, this court directed Augborne to choose to either (1) return to state court to 3 exhaust his unexhausted petition, in which case his federal habeas petition will be 4 denied without prejudice; or (2) file a motion asking this court to stay and abey his 5 unexhausted federal habeas petition while he returns to state court to exhaust his 6 unexhausted claims (see, e.g., ECF Nos. 15, 28, 38). The court also explained what 7 Augborne was required to show to obtain a stay. Id. 8 Augborne finally responded to the court’s order and filed a motion to stay on May 9 13, 2021 (ECF No. 39). However, his motion simply states in one sentence that he asks 10 the court to stay and abey his unexhausted petition. It is completely unsupported; he 11 does not even attempt to demonstrate that he meets the Rhines factors. Accordingly, 12 the motion to stay and abey Augborne’s federal habeas petition is denied. 13 IT IS THEREFORE ORDERED that petitioner’s motion to stay and abey (ECF 14 No. 39) is DENIED. 15 IT IS FURTHER ORDERED that the petition is DISMISSED without prejudice as 16 unexhausted. 17 IT IS FURTHER ORDERED that a certificate of appealability is denied, as 18 reasonable jurists would not find the dismissal of the petition to be debatable or wrong. 19 IT IS FURTHER ORDERED that the Clerk enter judgment accordingly and close 20 this case. 21 DATED: 1 September 2021. 22

UNITED STATES DISTRICT JUDGE 24 25 26 27