Gipson v. Oliver

Opinion

DISTRICT OF NEVADA

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

Petitioner Order Granting Unopposed Motion for Stay v.

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

Respondents

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

Conclusion It is therefore ordered that the unopposed motion for stay [ECF No. 47] is granted. It is further ordered that Gipson move to reopen this action within thirty days of lissuance of the remittitur by the Supreme Court of Nevada at the conclusion of the state court proceedings. The Clerk of Court is kindly directed to stay and administratively close this action. Dated: February 12, 2025 /, / Li. — Cristiqa Sil United States District Judge iV) ll XY