1 2 3 4 5 6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA
8 * * * 9 TERRANCE L. LAVOLL, Case No. 2:19-cv-02249-GMN-EJY
10 Petitioner, ORDER
11 v. 12 JERRY HOWELL, et al., 13 Respondents. 14 15 28 U.S.C. § 2254 habeas petitioner Terrance L. Lavoll moves for a stay and 16 abeyance of his petition while he returns to state court to exhaust one claim. (ECF No. 17 38.) Respondents oppose, and Lavoll replied. (ECF Nos. 39, 40.) The court is 18 persuaded that a stay is warranted, and therefore, grants the motion. 19 I. Background 20 a. State Court Proceedings 21 In October 1997, a jury convicted Lavoll of count 1: sexual assault of a minor 22 under 16, 2 counts of sexual assault of a minor under 16 with a deadly weapon; and 23 solicitation of minor to engage in acts constituting crimes against nature. (Exhibit 16).1 24 The state district court sentenced Lavoll to what amounts to three consecutive terms of 25 life with the possibility of parole. (Exh. 21.) 26 27 1 The Nevada Supreme Court affirmed Lavoll’s convictions in April 2000 and 2 affirmed the denial of his state postconviction habeas corpus petition in November 3 2007. (Exhs. 52, 99). In November 2010, this court denied Lavoll’s first federal habeas 4 petition on the merits. Case No. 2:08-cv-00011-PMP (ECF No. 42). 5 In July 2012, an amended judgment of conviction was entered that added a 6 special sentence of lifetime supervision to commence upon release from any term of 7 imprisonment, probation, or parole. (Exh. 101.) Almost six years later, in March 2018, 8 Lavoll filed a second state postconviction petition. (Exh. 103.) The state district court 9 denied it based on multiple procedural bars, and the Nevada Court of Appeals affirmed 10 the denial of the petition as untimely and successive. (Exhs. 114, 123.) 11 b. Federal Court Proceedings 12 Lavoll dispatched his federal habeas corpus petition for filing on November 26, 13 2019. (ECF No. 1). This court granted his motion for appointment of counsel, and he 14 filed an amended petition through counsel. (ECF Nos.12, 17). In January 2022, the 15 court granted respondents’ motion to dismiss in part, dismissing grounds 3 and 4 as 16 procedurally barred, concluding that ground 1 was unexhausted, and deferring a 17 decision on ground 2. (ECF No. 34.) 18 II. Motion for Stay 19 Lavoll now moves for a stay and abeyance to return to state court to exhaust 20 ground 1. (ECF No. 38.) In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court 21 placed limitations upon the discretion of the court to facilitate habeas petitioners’ return 22 to state court to exhaust claims. First, “stay and abeyance should be available only in 23 limited circumstances.” Rhines, 544 U.S. at 277. And the relief is “is only appropriate 24 when the district court determines there was good cause for the petitioner’s failure to 25 exhaust his claims first in state court. Id. However, “it likely would be an abuse of 26 discretion for a district court to deny a stay and to dismiss a mixed petition if the 27 petitioner had good cause for his failure to exhaust, his unexhausted claims are 1 intentionally dilatory litigation tactics.” Id. at 278; see also Gonzalez v. Wong, 667 F.3d 2 965, 977–80 (9th Cir. 2011). 3 “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, 4 supported by sufficient evidence, to justify [the failure to exhaust a claim in state court].” 5 Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “While a bald assertion cannot 6 amount to a showing of good cause, a reasonable excuse, supported by evidence to 7 justify a petitioner’s failure to exhaust, will.” Id. An indication that the standard is not 8 particularly stringent can be found in Pace v. DiGuglielmo, 544 U.S. 408 (2005), where 9 the Supreme Court stated that: “[a] petitioner’s reasonable confusion about whether a 10 state filing would be timely will ordinarily constitute ‘good cause’ to excuse his failure to 11 exhaust.” Pace, 544 U.S. at 416 (citing Rhines, 544 U.S. at 278). See also Jackson v. 12 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (the application of an “extraordinary 13 circumstances” standard does not comport with the “good cause” standard prescribed 14 by Rhines). 15 As ground 1, Lavoll alleges that he was denied the right to choose whether to 16 concede guilt at trial in violation of his right to choose the objective of the defense under 17 the Sixth and Fourteenth Amendments. (ECF No. 17 at 7-10.) He argues that his 18 counsel conceded during closing arguments that Lavoll was guilty of a lesser offense 19 though Lavoll never agreed to this concession. 20 Lavoll relies on McCoy v. Louisiana, wherein the Supreme Court held that 21 defense counsel’s concession of guilt, when the accused wished to maintain his 22 innocence, violated the accused’s Sixth Amendment right to choose the objective of the 23 defense. 138 S.Ct. 1500 (2018). In McCoy the Court explained that “[b]ecause a client’s 24 autonomy, not counsel’s competence, is in issue, we do not apply our ineffective- 25 assistance-of-counsel jurisprudence, Strickland v. Washington, 466 U.S. 668 (1984), or 26 United States v. Chronic, 466 U.S. 648 (1984) . . . .” Id. at 1510-1511. 27 Lavoll points out that McCoy was decided in May 2018, while his state petition 1 38 at 5.) He argues that his state claim was based on the same factual and legal 2 allegations as the federal claim, that it “contain[ed] some important elements of a 3 McCoy claim,” and that, at the very least, he was reasonably confused as to whether a 4 McCoy claim was exhausted. Id. 5 Opposing the motion, respondents assert that Lavoll’s argument that he believed 6 he exhausted his claim could theoretically apply to every pro se petitioner. (ECF No. 39 7 at 3.) They also contend that when Lavoll opposed respondents’ motion to dismiss, he 8 took the position that he no longer had an available state-court forum to present ground 9 1 due to Nevada’s mandatory procedural bars. (ECF No. 25 at 20-21.) This is incorrect: 10 Lavoll argued that ground 1 was exhausted, but this court disagreed. (Id. at 20; ECF No. 11 34 at 6-7.) Respondents also contend that ground 1 has no likelihood of success. (ECF 12 No. 39 at 4.) They argue that Lavoll fails to point to anywhere in the state-court record 13 where his counsel conceded to lesser charges over Lavoll’s objection. They point out 14 that counsel’s concession during closing argument was to uncharged offenses and 15 insist that Lavoll has no likelihood of success on the merits. 16 The court agrees with Lavoll that the proper inquiry here, however, is whether the 17 claim is plainly meritless. The court concludes that Lavoll has met the not-particularly- 18 strict bar of demonstrating that good cause exists and that the claim is not plainly 19 meritless. Further, there is no credible indication of intentionally dilatory litigation tactics. 20 Accordingly, the court grants the motion for stay. Lavoll will need to file a motion to re- 21 open the case after his state proceedings have concluded. 22 III. Conclusion 23 IT IS THEREFORE ORDERED that petitioner’s motion for stay and abeyance 24 (ECF No. 38) is GRANTED. 25 IT IS FURTHER ORDERED that this action is STAYED pending final resolution 26 of petitioner’s state proceedings.
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA
8 * * * 9 TERRANCE L. LAVOLL, Case No. 2:19-cv-02249-GMN-EJY
10 Petitioner, ORDER
11 v. 12 JERRY HOWELL, et al., 13 Respondents. 14 15 28 U.S.C. § 2254 habeas petitioner Terrance L. Lavoll moves for a stay and 16 abeyance of his petition while he returns to state court to exhaust one claim. (ECF No. 17 38.) Respondents oppose, and Lavoll replied. (ECF Nos. 39, 40.) The court is 18 persuaded that a stay is warranted, and therefore, grants the motion. 19 I. Background 20 a. State Court Proceedings 21 In October 1997, a jury convicted Lavoll of count 1: sexual assault of a minor 22 under 16, 2 counts of sexual assault of a minor under 16 with a deadly weapon; and 23 solicitation of minor to engage in acts constituting crimes against nature. (Exhibit 16).1 24 The state district court sentenced Lavoll to what amounts to three consecutive terms of 25 life with the possibility of parole. (Exh. 21.) 26 27 1 The Nevada Supreme Court affirmed Lavoll’s convictions in April 2000 and 2 affirmed the denial of his state postconviction habeas corpus petition in November 3 2007. (Exhs. 52, 99). In November 2010, this court denied Lavoll’s first federal habeas 4 petition on the merits. Case No. 2:08-cv-00011-PMP (ECF No. 42). 5 In July 2012, an amended judgment of conviction was entered that added a 6 special sentence of lifetime supervision to commence upon release from any term of 7 imprisonment, probation, or parole. (Exh. 101.) Almost six years later, in March 2018, 8 Lavoll filed a second state postconviction petition. (Exh. 103.) The state district court 9 denied it based on multiple procedural bars, and the Nevada Court of Appeals affirmed 10 the denial of the petition as untimely and successive. (Exhs. 114, 123.) 11 b. Federal Court Proceedings 12 Lavoll dispatched his federal habeas corpus petition for filing on November 26, 13 2019. (ECF No. 1). This court granted his motion for appointment of counsel, and he 14 filed an amended petition through counsel. (ECF Nos.12, 17). In January 2022, the 15 court granted respondents’ motion to dismiss in part, dismissing grounds 3 and 4 as 16 procedurally barred, concluding that ground 1 was unexhausted, and deferring a 17 decision on ground 2. (ECF No. 34.) 18 II. Motion for Stay 19 Lavoll now moves for a stay and abeyance to return to state court to exhaust 20 ground 1. (ECF No. 38.) In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court 21 placed limitations upon the discretion of the court to facilitate habeas petitioners’ return 22 to state court to exhaust claims. First, “stay and abeyance should be available only in 23 limited circumstances.” Rhines, 544 U.S. at 277. And the relief is “is only appropriate 24 when the district court determines there was good cause for the petitioner’s failure to 25 exhaust his claims first in state court. Id. However, “it likely would be an abuse of 26 discretion for a district court to deny a stay and to dismiss a mixed petition if the 27 petitioner had good cause for his failure to exhaust, his unexhausted claims are 1 intentionally dilatory litigation tactics.” Id. at 278; see also Gonzalez v. Wong, 667 F.3d 2 965, 977–80 (9th Cir. 2011). 3 “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, 4 supported by sufficient evidence, to justify [the failure to exhaust a claim in state court].” 5 Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “While a bald assertion cannot 6 amount to a showing of good cause, a reasonable excuse, supported by evidence to 7 justify a petitioner’s failure to exhaust, will.” Id. An indication that the standard is not 8 particularly stringent can be found in Pace v. DiGuglielmo, 544 U.S. 408 (2005), where 9 the Supreme Court stated that: “[a] petitioner’s reasonable confusion about whether a 10 state filing would be timely will ordinarily constitute ‘good cause’ to excuse his failure to 11 exhaust.” Pace, 544 U.S. at 416 (citing Rhines, 544 U.S. at 278). See also Jackson v. 12 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (the application of an “extraordinary 13 circumstances” standard does not comport with the “good cause” standard prescribed 14 by Rhines). 15 As ground 1, Lavoll alleges that he was denied the right to choose whether to 16 concede guilt at trial in violation of his right to choose the objective of the defense under 17 the Sixth and Fourteenth Amendments. (ECF No. 17 at 7-10.) He argues that his 18 counsel conceded during closing arguments that Lavoll was guilty of a lesser offense 19 though Lavoll never agreed to this concession. 20 Lavoll relies on McCoy v. Louisiana, wherein the Supreme Court held that 21 defense counsel’s concession of guilt, when the accused wished to maintain his 22 innocence, violated the accused’s Sixth Amendment right to choose the objective of the 23 defense. 138 S.Ct. 1500 (2018). In McCoy the Court explained that “[b]ecause a client’s 24 autonomy, not counsel’s competence, is in issue, we do not apply our ineffective- 25 assistance-of-counsel jurisprudence, Strickland v. Washington, 466 U.S. 668 (1984), or 26 United States v. Chronic, 466 U.S. 648 (1984) . . . .” Id. at 1510-1511. 27 Lavoll points out that McCoy was decided in May 2018, while his state petition 1 38 at 5.) He argues that his state claim was based on the same factual and legal 2 allegations as the federal claim, that it “contain[ed] some important elements of a 3 McCoy claim,” and that, at the very least, he was reasonably confused as to whether a 4 McCoy claim was exhausted. Id. 5 Opposing the motion, respondents assert that Lavoll’s argument that he believed 6 he exhausted his claim could theoretically apply to every pro se petitioner. (ECF No. 39 7 at 3.) They also contend that when Lavoll opposed respondents’ motion to dismiss, he 8 took the position that he no longer had an available state-court forum to present ground 9 1 due to Nevada’s mandatory procedural bars. (ECF No. 25 at 20-21.) This is incorrect: 10 Lavoll argued that ground 1 was exhausted, but this court disagreed. (Id. at 20; ECF No. 11 34 at 6-7.) Respondents also contend that ground 1 has no likelihood of success. (ECF 12 No. 39 at 4.) They argue that Lavoll fails to point to anywhere in the state-court record 13 where his counsel conceded to lesser charges over Lavoll’s objection. They point out 14 that counsel’s concession during closing argument was to uncharged offenses and 15 insist that Lavoll has no likelihood of success on the merits. 16 The court agrees with Lavoll that the proper inquiry here, however, is whether the 17 claim is plainly meritless. The court concludes that Lavoll has met the not-particularly- 18 strict bar of demonstrating that good cause exists and that the claim is not plainly 19 meritless. Further, there is no credible indication of intentionally dilatory litigation tactics. 20 Accordingly, the court grants the motion for stay. Lavoll will need to file a motion to re- 21 open the case after his state proceedings have concluded. 22 III. Conclusion 23 IT IS THEREFORE ORDERED that petitioner’s motion for stay and abeyance 24 (ECF No. 38) is GRANTED. 25 IT IS FURTHER ORDERED that this action is STAYED pending final resolution 26 of petitioner’s state proceedings. 27 IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner 1 issuance of the remittitur by the state appellate court at the conclusion of state-court 2 proceedings. 3 IT IS FURTHER ORDERED that the Clerk of Court ADMINISTRATIVELY 4 CLOSE this action, until such time as the court grants a motion to reopen the matter. 5 6 DATED: 18 October 2022.
7 GLORIA M. NAVARRO 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27