Gipson v. Oliver

Opinion

2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3

4 Joshua J. Gipson, Case No. 2:23-cv-00099-CDS-DJA

5 Petitioner Order Granting Unopposed Motion for Stay 6 v.

7 Ronald Oliver, et al., [ECF No. 47]

8 Respondents

10 This matter is before the court on petitioner Joshua J. Gipson’s unopposed motion for a 11 stay. ECF No. 47. This court is authorized to stay a habeas matter to allow a petitioner to present 12 unexhausted claims to the state court. Rhines v. Weber, 544 U.S. 269, 273–75 (2005). Rhines allows 13 for a stay if “(1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state court; 14 (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the 15 petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019, 16 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). The court finds that a stay is appropriate. 17 Although a new state habeas petition will be procedurally barred as untimely, Gipson has a 18 colorable actual innocence argument he can make to the state courts to overcome that procedural 19 bar. See ECF No. 47 at 3–4. Moreover, Gipson’s ineffective assistance of counsel claims, which 20 were not previously raised before the state court, are not patently meritless, and Gipson has not 21 engaged in intentionally dilatory litigation tactics. 22

25 26 27 1 Conclusion 2 It is therefore ordered that the unopposed motion for stay [ECF No. 47] is granted. 3 It is further ordered that Gipson move to reopen this action within thirty days of 4 |lissuance of the remittitur by the Supreme Court of Nevada at the conclusion of the state court 5 ||proceedings. 6 The Clerk of Court is kindly directed to stay and administratively close this action. 7 Dated: February 12, 2025 /, / Li. — 9 Cristiqa Sil United States District Judge 10 iV) ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XY