Hudson v. State of Nevada

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 JOE HUDSON, Case No. 3:23-cv-00080-ART-CSD 5 Petitioner, ORDER 6 v.

7 NETHANJAH BREITENBACH, et al.,

8 Respondents.

9 This counseled habeas petition comes before the Court on Petitioner Joe 10 Hudson’s unopposed motion for stay and abeyance. (ECF No. 13.) 11 Hudson filed his federal petition for writ of habeas corpus pursuant to 28 12 U.S.C. § 2254 on May 2, 2023. (ECF No. 5.) On May 23, 2023, the Court 13 provisionally appointed the Federal Public Defender to represent Hudson. (ECF 14 No. 8.) Counsel was officially appointed on June 23, 2023, and filed a first 15 amended petition for writ of habeas corpus on August 21, 2023. (ECF Nos. 11, 16 12.) Hudson now seeks a stay and abeyance because (1) grounds 3 and 4 of his 17 first amended petition are unexhausted and (2) he intends to initiate proceedings 18 in State court to exhaust those grounds as soon as he obtains some missing state 19 court records. (ECF No. 13 at 2.) 20 In Rhines v. Weber, the Supreme Court placed limitations upon the 21 discretion of the court to facilitate habeas petitioners’ return to state court to 22 exhaust claims. 544 U.S. 269 (2005). The Rhines Court stated: 23 [S]tay and abeyance should be available only in limited 24 circumstances. Because granting a stay effectively excuses a petitioner’s failure to present his claims first to the state courts, stay 25 and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims 26 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 27 grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of 28 habeas corpus may be denied on the merits, notwithstanding the 1 courts of the State”). 2 544 U.S. at 277. The Court went on to state that “it likely would be an abuse of 3 discretion for a district court to deny a stay and to dismiss a mixed petition if the 4 petitioner had good cause for his failure to exhaust, his unexhausted claims are 5 potentially meritorious, and there is no indication that the petitioner engaged in 6 intentionally dilatory litigation tactics.” Id. at 278. 7 The Ninth Circuit has held that the application of an “extraordinary 8 circumstances” standard does not comport with the “good cause” standard 9 prescribed by Rhines. Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005). This 10 Court has declined to prescribe the strictest possible standard for issuance of a 11 stay. See, e.g., Riner v. Crawford, 415 F. Supp.2d 1207, 1210 (D. Nev. 2006) (“[I]t 12 would appear that good cause under Rhines, at least in this Circuit, should not 13 be so strict a standard as to require a showing of some extreme and unusual 14 event beyond the control of the defendant.”). 15 Hudson argues that good cause exists because the unexhausted grounds 16 challenge the legality of his habitual criminal adjudication. (ECF No. 13 at 3.) 17 Specifically, Hudson argues that the state court considered inadmissible and 18 improper evidence pertaining to his criminal history, which the state court sought 19 and obtained on its own and which was not made available to defense counsel. 20 (Id.) Hudson explains that he is now attempting to obtain information pertaining 21 to that criminal history, which date back to 1976, so that he can properly 22 challenge the state court’s findings. The Court finds that this constitutes good 23 cause for the failure to exhaust. The Court further finds that the unexhausted 24 grounds are not “plainly meritless,” and that Hudson has not engaged in 25 intentionally dilatory litigation tactics. Accordingly, Hudson’s unopposed request 26 for a stay and abeyance will be granted. 27 It is therefore ordered that Petitioner Joe Hudson’s unopposed motion for 28 stay and abeyance (ECF No. 13) is granted. This action is stayed pending 1 || exhaustion of the unexhausted claims in the first amended petition. The grant of 2 || this stay is conditioned upon Hudson litigating his state postconviction petition 3 || or other appropriate proceeding in state court and returning to federal court with 4 || a motion to reopen within 45 days of issuance of the remittitur by the Nevada 5 || Supreme Court at the conclusion of the state court proceedings. 6 It is further ordered that Respondents’ deadline to file their response to the 7 || first amended petition is vacated. The time for Respondents to answer or 8 || otherwise respond to the first amended petition will be reset after the stay is 9 || lifted. 10 It is further ordered that the clerk shall administratively close this action, 11 || until such time as the court grants a motion to reopen the matter. 12 DATED THIS 29th day of September 2023. 13 4 Ans poet 1S ANNE R. TRAUM 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28