3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 DAVID AUGUST KILLE, SR., Case No. 2:17-cv-01805-RFB-NJK
7 Petitioner, v. ORDER 8 BRIAN WILLIAMS, et al., 9 Respondents. 10 11 This pro se habeas matter comes before the Court on Petitioner David August Kille, Sr.’s 12 Motion for Stay and Abeyance (ECF No. 27). Respondents do not oppose (ECF No. 28). 13 Kille challenges the Nevada Department of Corrections’ (“NDOC”) refusal to grant him 14 educational time credits for obtaining his G.E.D. and high school diploma while incarcerated. The 15 Amended Petition (ECF No. 7) alleges two claims asserting that NDOC violated Kille’s Fifth, 16 Eighth and Fourteenth Amendment rights to due process, against cruel and unusual punishment, 17 and to equal protection. On May 13, 2019, the Court granted in part and denied in part 18 Respondents’ motion to dismiss, finding that Kille’s petition was unexhausted in its entirety. (ECF 19 No. 23.) The Court ordered that within 30 days, Kille “will either (1) move to dismiss the petition 20 without prejudice or (2) file a motion for other appropriate relief, including potentially a motion 21 to stay and abey.” (Id. at 3.) Kille now seeks a stay and abeyance as well as the appointment of 22 counsel. 23 I. KILLE’S MOTION FOR STAY AND ABEYANCE 24 A federal court cannot grant a state prisoner’s petition for writ of habeas corpus unless the 25 petitioner has fully exhausted available state court remedies for each of the issues presented, or the 26 State has expressly waived the exhaustion issue. 28 U.S.C. § 2254(b),(c); see also Rose v. Lundy, 27 455 U.S. 509 (1982). In general, a federal district court must dismiss an unexhausted petition 1 Court “has long held that a state prisoner’s federal habeas petition should be dismissed if the 2 prisoner has not exhausted available state remedies as to any of his federal claims”). 3 A district court is authorized to stay an unexhausted petition in “limited circumstances” to 4 allow a petitioner to present unexhausted claims to the state court without losing his right to federal 5 habeas review due to the relevant one-year statute of limitations. Rhines v. Weber, 544 U.S. 269, 6 273–75 (2005); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that district 7 courts have authority to stay and hold in abeyance both mixed petitions and “fully unexhausted 8 petitions under the circumstances set forth in Rhines”). Under the Rhines test, “a district court 9 must stay a mixed petition only if: (1) the petitioner has ‘good cause’ for his failure to exhaust his 10 claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no 11 indication that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. 12 Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 13 This Court has declined to prescribe the strictest possible standard for issuance of a stay. 14 E.g., Riner v. Crawford, 415 F. Supp. 2d 1207, 1210 (D. Nev. 2006). “[G]ood cause under Rhines, 15 at least in this Circuit, should not be so strict a standard as to require a showing of some extreme 16 and unusual event beyond the control of the defendant.” Id. Thus, “petitioner’s reasonable 17 confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ for 18 him to file in federal court.” Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). Ineffective 19 assistance of post-conviction counsel or a lack of counsel can also constitute good cause. Blake v. 20 Baker, 745 F.3d 977, 982–83 (9th Cir. 2014); Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017) 21 (a “statement that ‘there was no counsel’ in [the petitioner’s] state post-conviction case is sufficient 22 to establish good cause”) (quoting Martinez v. Ryan, 566 U.S. 1, 17 (2012)). 23 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does not 24 require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. Roe, 425 F.3d 25 654, 661–62 (9th Cir. 2005)). But courts “must interpret whether a petitioner has ‘good cause’ for 26 a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the district court 27 should only stay mixed petitions in ‘limited circumstances’.” Wooten, 540 F.3d at 1024 (citing 1 finality of sentences and to encourage petitioners to exhaust their claims in state court before filing 2 in federal court.” Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 276–77). 3 Here, Kille has failed to provide any justification for a stay and abeyance. He requests the 4 stay “so that he may attempt to exhaust his due process, equal protection, and his cruel and unusual 5 punishment claims in the Nevada Supreme Court.” (ECF No. 27 at 2.) This statement merely 6 reflects the Court’s prior holding that his claims are not exhausted. Kille’s statement does not in 7 any sense demonstrate good cause for his failure to exhaust the claims. Kille also fails to address 8 the second and third Rhines factors—he must demonstrate that his unexhausted claims are 9 potentially meritorious and he has not intentionally engaged in dilatory litigation tactics. If the 10 Court granted a stay based upon a nonexistent showing, it would be applying the Rhines test in a 11 manner that rendered stay orders not only routine but automatic, which would undermine the goals 12 of AEDPA and run afoul of Rhines’ instruction that a stay and abeyance is only appropriate in 13 limited circumstances. See Wooten, 540 F.3d at 1024. Because Kille did not address the 14 requirements for a Rhines stay, his motion will be denied without prejudice. He may renew the 15 motion within 30 days, or his petition will be dismissed without prejudice as wholly unexhausted. 16 II. REQUEST FOR APPOINTMENT OF COUNSEL 17 A note in Kille’s motion asks this Court to appoint counsel. There is no constitutional right 18 to appointed counsel in a federal habeas corpus proceeding. McClasky v. Zant, 499 U.S. 467, 495 19 (1991) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel 20 extends to the first appeal of right, and no further.”)). However, an indigent petitioner seeking 21 relief under 28 U.S.C. § 2254 may move the court for appointment of representation to pursue that 22 relief. 18 U.S.C. § 3006A(a)(2)(B). Federal courts have discretion to appoint counsel when the 23 interests of justice so require. 18 U.S.C. § 3006A(a)(2); see also LaMere v. Risley, 827 F.2d 622, 24 626 (9th Cir. 1987). The interests of justice so require “when the complexities of the case are such 25 that denial of counsel would amount to a denial of due process.” Brown v.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 DAVID AUGUST KILLE, SR., Case No. 2:17-cv-01805-RFB-NJK
7 Petitioner, v. ORDER 8 BRIAN WILLIAMS, et al., 9 Respondents. 10 11 This pro se habeas matter comes before the Court on Petitioner David August Kille, Sr.’s 12 Motion for Stay and Abeyance (ECF No. 27). Respondents do not oppose (ECF No. 28). 13 Kille challenges the Nevada Department of Corrections’ (“NDOC”) refusal to grant him 14 educational time credits for obtaining his G.E.D. and high school diploma while incarcerated. The 15 Amended Petition (ECF No. 7) alleges two claims asserting that NDOC violated Kille’s Fifth, 16 Eighth and Fourteenth Amendment rights to due process, against cruel and unusual punishment, 17 and to equal protection. On May 13, 2019, the Court granted in part and denied in part 18 Respondents’ motion to dismiss, finding that Kille’s petition was unexhausted in its entirety. (ECF 19 No. 23.) The Court ordered that within 30 days, Kille “will either (1) move to dismiss the petition 20 without prejudice or (2) file a motion for other appropriate relief, including potentially a motion 21 to stay and abey.” (Id. at 3.) Kille now seeks a stay and abeyance as well as the appointment of 22 counsel. 23 I. KILLE’S MOTION FOR STAY AND ABEYANCE 24 A federal court cannot grant a state prisoner’s petition for writ of habeas corpus unless the 25 petitioner has fully exhausted available state court remedies for each of the issues presented, or the 26 State has expressly waived the exhaustion issue. 28 U.S.C. § 2254(b),(c); see also Rose v. Lundy, 27 455 U.S. 509 (1982). In general, a federal district court must dismiss an unexhausted petition 1 Court “has long held that a state prisoner’s federal habeas petition should be dismissed if the 2 prisoner has not exhausted available state remedies as to any of his federal claims”). 3 A district court is authorized to stay an unexhausted petition in “limited circumstances” to 4 allow a petitioner to present unexhausted claims to the state court without losing his right to federal 5 habeas review due to the relevant one-year statute of limitations. Rhines v. Weber, 544 U.S. 269, 6 273–75 (2005); see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that district 7 courts have authority to stay and hold in abeyance both mixed petitions and “fully unexhausted 8 petitions under the circumstances set forth in Rhines”). Under the Rhines test, “a district court 9 must stay a mixed petition only if: (1) the petitioner has ‘good cause’ for his failure to exhaust his 10 claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no 11 indication that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. 12 Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 13 This Court has declined to prescribe the strictest possible standard for issuance of a stay. 14 E.g., Riner v. Crawford, 415 F. Supp. 2d 1207, 1210 (D. Nev. 2006). “[G]ood cause under Rhines, 15 at least in this Circuit, should not be so strict a standard as to require a showing of some extreme 16 and unusual event beyond the control of the defendant.” Id. Thus, “petitioner’s reasonable 17 confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ for 18 him to file in federal court.” Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). Ineffective 19 assistance of post-conviction counsel or a lack of counsel can also constitute good cause. Blake v. 20 Baker, 745 F.3d 977, 982–83 (9th Cir. 2014); Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017) 21 (a “statement that ‘there was no counsel’ in [the petitioner’s] state post-conviction case is sufficient 22 to establish good cause”) (quoting Martinez v. Ryan, 566 U.S. 1, 17 (2012)). 23 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does not 24 require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. Roe, 425 F.3d 25 654, 661–62 (9th Cir. 2005)). But courts “must interpret whether a petitioner has ‘good cause’ for 26 a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the district court 27 should only stay mixed petitions in ‘limited circumstances’.” Wooten, 540 F.3d at 1024 (citing 1 finality of sentences and to encourage petitioners to exhaust their claims in state court before filing 2 in federal court.” Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 276–77). 3 Here, Kille has failed to provide any justification for a stay and abeyance. He requests the 4 stay “so that he may attempt to exhaust his due process, equal protection, and his cruel and unusual 5 punishment claims in the Nevada Supreme Court.” (ECF No. 27 at 2.) This statement merely 6 reflects the Court’s prior holding that his claims are not exhausted. Kille’s statement does not in 7 any sense demonstrate good cause for his failure to exhaust the claims. Kille also fails to address 8 the second and third Rhines factors—he must demonstrate that his unexhausted claims are 9 potentially meritorious and he has not intentionally engaged in dilatory litigation tactics. If the 10 Court granted a stay based upon a nonexistent showing, it would be applying the Rhines test in a 11 manner that rendered stay orders not only routine but automatic, which would undermine the goals 12 of AEDPA and run afoul of Rhines’ instruction that a stay and abeyance is only appropriate in 13 limited circumstances. See Wooten, 540 F.3d at 1024. Because Kille did not address the 14 requirements for a Rhines stay, his motion will be denied without prejudice. He may renew the 15 motion within 30 days, or his petition will be dismissed without prejudice as wholly unexhausted. 16 II. REQUEST FOR APPOINTMENT OF COUNSEL 17 A note in Kille’s motion asks this Court to appoint counsel. There is no constitutional right 18 to appointed counsel in a federal habeas corpus proceeding. McClasky v. Zant, 499 U.S. 467, 495 19 (1991) (citing Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to appointed counsel 20 extends to the first appeal of right, and no further.”)). However, an indigent petitioner seeking 21 relief under 28 U.S.C. § 2254 may move the court for appointment of representation to pursue that 22 relief. 18 U.S.C. § 3006A(a)(2)(B). Federal courts have discretion to appoint counsel when the 23 interests of justice so require. 18 U.S.C. § 3006A(a)(2); see also LaMere v. Risley, 827 F.2d 622, 24 626 (9th Cir. 1987). The interests of justice so require “when the complexities of the case are such 25 that denial of counsel would amount to a denial of due process.” Brown v. United States, 623 F.2d 26 54, 61 (9th Cir. 1980). In the absence of such circumstances, a request for counsel in habeas 27 proceedings is addressed to the sound discretion of the district court. Id. (citing Dillon v. United 1 || understanding of the issues and the ability to present forcefully and coherently his contentions, no 2 || attorney is required. LaMere, 827 F.2d at 626. 3 In this case, the Court finds that the interests of justice do not require the appointment of 4 || counsel. Kille has demonstrated that he can coherently present his claims without counsel, and his 5 || claims are not particularly complex. Indeed, Kille has managed to file an application to proceed 6 || in forma pauperis, several motions, and an amended habeas petition all without the assistance of 7 || counsel. The Court will therefore deny Kille’s request. 8 IT IS THEREFORE ORDERED: 9 1. Petitioner David August Kille, Sr.’s Motion for Stay and Abeyance (ECF No. 27) and 10 request for counsel are DENIED WITHOUT PREJUDICE. 11 2. Petitioner will have 30 days from the date of entry of this order to renew his motion or 12 seek other appropriate relief in accordance with the Court’s May 13, 2019 Order (ECF 13 No. 23). Failure to do so will result in the dismissal of the unexhausted petition without 14 prejudice and without further advance notice. 15 DATED this 6th day of September, 2019. 16 1 as RICHARD F. BOULWARE, II 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28