1 2 3 4 5
7 DISTRICT OF NEVADA
8 * * * 9 DONALD RICHARD MCFADDEN, Case No. 2:20-cv-00374-GMN-BNW
10 Petitioner, ORDER
11 v. 12 BRIAN WILLIAMS, SR, et al., 13 Respondents. 14 15 On February 25, 2021, this court granted respondents’ motion to dismiss certain 16 claims in Donald Richard McFadden’s 28 U.S.C. § 2254 habeas corpus petition as 17 unexhausted (ECF No. 15). Because the petition contained exhausted and unexhausted 18 claims, the court directed McFadden to choose to either: submit a sworn declaration 19 voluntarily abandoning the unexhausted claims in his federal habeas petition, and 20 proceed only on the exhausted claims; return to state court to exhaust his unexhausted 21 claims, in which case his federal habeas petition will be denied without prejudice; or file 22 a motion asking this court to stay and abey his exhausted federal habeas claims while 23 he returns to state court to exhaust his unexhausted claims. 24 In response, McFadden filed two motions. On March 30, 2021, McFadden filed a 25 second motion for appointment of counsel (ECF No. 18). As the court explained 26 previously, there is no constitutional right to appointed counsel for a federal habeas 27 corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. 1 generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. 2 denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. 3 denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities 4 of the case are such that denial of counsel would amount to a denial of due process, 5 and where the petitioner is a person of such limited education as to be incapable of 6 fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. 7 Bennett, 423 F.2d 948 (8th Cir.1970). The court previously determined that 8 McFadden’s petition presents the issues arising from his guilty plea that he wishes to 9 raise in a reasonably clear manner, and the legal issues do not appear to be particularly 10 complex. In McFadden’s new motion for counsel, he presents no new arguments to 11 demonstrate that counsel is warranted. Therefore, his motion is denied. 12 On March 15, 2021, McFadden filed a motion for stay and abeyance in order that 13 he may return to state court to exhaust his unexhausted claims (ECF No. 16). 14 Respondents filed an opposition (ECF No. 20). In Rhines v. Weber, 544 U.S. 269 15 (2005), the Supreme Court placed limitations upon the discretion of the court to facilitate 16 habeas petitioners’ return to state court to exhaust claims. The Rhines Court stated:
17 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s 18 failure to present his claims first to the state courts, stay and abeyance is 19 only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court. Moreover, 20 even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted 21 claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for 22 a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the 23 State”). 24 Rhines, 544 U.S. at 277. 25 The Court went on to state that, “[I]t likely would be an abuse of discretion for a 26 district court to deny a stay and to dismiss a mixed petition if the petitioner had good 27 cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and 1 there is no indication that the petitioner engaged in intentionally dilatory litigation 2 tactics.” Id. at 278. 3 Thus, the court may stay a petition containing both exhausted and unexhausted 4 claims if: (1) the habeas petitioner has good cause; (2) the unexhausted claims are 5 potentially meritorious; and (3) petitioner has not engaged in dilatory litigation tactics. 6 Rhines, 544 U.S. at 277; Gonzalez v. Wong, 667 F.3d 965, 977–80 (9th Cir. 2011). 7 “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, 8 supported by sufficient evidence, to justify [the failure to exhaust a claim in state court].” 9 Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “While a bald assertion cannot 10 amount to a showing of good cause, a reasonable excuse, supported by evidence to 11 justify a petitioner's failure to exhaust, will.” Id. An indication that the standard is not 12 particularly stringent can be found in Pace v. DiGuglielmo, 544 U.S. 408 (2005), where 13 the Supreme Court stated that: “[a] petitioner’s reasonable confusion about whether a 14 state filing would be timely will ordinarily constitute ‘good cause’ to excuse his failure to 15 exhaust.” Pace, 544 U.S. at 416 (citing Rhines, 544 U.S. at 278). See also Jackson v. 16 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (the application of an “extraordinary 17 circumstances” standard does not comport with the “good cause” standard prescribed 18 by Rhines). 19 Here, McFadden briefly states that he has no education or experience in legal 20 matters and was unaware that he had not exhausted some of his claims (ECF No. 16). 21 However, “[u]nspecific, unsupported excuses for failing to exhaust – such as unjustified 22 ignorance,” do not satisfy the good cause requirement. Blake v. Baker, 745 F.3d 977, 23 981 (9th Cir. 2014) (interpreting the holding in Wooten v. Kirkland, 540 F.3d 1019, 1024 24 (9th Cir. 2008)). Notably, McFadden raised several ineffective assistance of counsel 25 claims in a timely pro se state postconviction habeas corpus petition, and he raised 26 them on appeal of the denial of that state petition to the Nevada Supreme Court 27 (exhibits 26, 38, 45).1 Thus, his alleged lack of familiarity with the state-court process is 1 belied by the record in any event. McFadden also asserts that his unexhausted claims 2 are “certainly not meritless,” (ECF No. 16, p. 2), but this wholly unsupported, conclusory 3 statement fails to demonstrate that the claims have merit. McFadden has not 4 demonstrated under Rhines that a stay should be granted. His motion, therefore, is 5 denied. 6 As the court denies the stay, McFadden must now elect from two options:
7 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claims in his federal habeas petition, and proceed only 8 on the exhausted claims; or 9 2. He may return to state court to exhaust his unexhausted 10 claims, in which case his federal habeas petition will be denied without prejudice. 11
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1 2 3 4 5
7 DISTRICT OF NEVADA
8 * * * 9 DONALD RICHARD MCFADDEN, Case No. 2:20-cv-00374-GMN-BNW
10 Petitioner, ORDER
11 v. 12 BRIAN WILLIAMS, SR, et al., 13 Respondents. 14 15 On February 25, 2021, this court granted respondents’ motion to dismiss certain 16 claims in Donald Richard McFadden’s 28 U.S.C. § 2254 habeas corpus petition as 17 unexhausted (ECF No. 15). Because the petition contained exhausted and unexhausted 18 claims, the court directed McFadden to choose to either: submit a sworn declaration 19 voluntarily abandoning the unexhausted claims in his federal habeas petition, and 20 proceed only on the exhausted claims; return to state court to exhaust his unexhausted 21 claims, in which case his federal habeas petition will be denied without prejudice; or file 22 a motion asking this court to stay and abey his exhausted federal habeas claims while 23 he returns to state court to exhaust his unexhausted claims. 24 In response, McFadden filed two motions. On March 30, 2021, McFadden filed a 25 second motion for appointment of counsel (ECF No. 18). As the court explained 26 previously, there is no constitutional right to appointed counsel for a federal habeas 27 corpus proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. 1 generally discretionary. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir.1986), cert. 2 denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. 3 denied, 469 U.S. 838 (1984). However, counsel must be appointed if the complexities 4 of the case are such that denial of counsel would amount to a denial of due process, 5 and where the petitioner is a person of such limited education as to be incapable of 6 fairly presenting his claims. See Chaney, 801 F.2d at 1196; see also Hawkins v. 7 Bennett, 423 F.2d 948 (8th Cir.1970). The court previously determined that 8 McFadden’s petition presents the issues arising from his guilty plea that he wishes to 9 raise in a reasonably clear manner, and the legal issues do not appear to be particularly 10 complex. In McFadden’s new motion for counsel, he presents no new arguments to 11 demonstrate that counsel is warranted. Therefore, his motion is denied. 12 On March 15, 2021, McFadden filed a motion for stay and abeyance in order that 13 he may return to state court to exhaust his unexhausted claims (ECF No. 16). 14 Respondents filed an opposition (ECF No. 20). In Rhines v. Weber, 544 U.S. 269 15 (2005), the Supreme Court placed limitations upon the discretion of the court to facilitate 16 habeas petitioners’ return to state court to exhaust claims. The Rhines Court stated:
17 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s 18 failure to present his claims first to the state courts, stay and abeyance is 19 only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court. Moreover, 20 even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted 21 claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for 22 a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the 23 State”). 24 Rhines, 544 U.S. at 277. 25 The Court went on to state that, “[I]t likely would be an abuse of discretion for a 26 district court to deny a stay and to dismiss a mixed petition if the petitioner had good 27 cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and 1 there is no indication that the petitioner engaged in intentionally dilatory litigation 2 tactics.” Id. at 278. 3 Thus, the court may stay a petition containing both exhausted and unexhausted 4 claims if: (1) the habeas petitioner has good cause; (2) the unexhausted claims are 5 potentially meritorious; and (3) petitioner has not engaged in dilatory litigation tactics. 6 Rhines, 544 U.S. at 277; Gonzalez v. Wong, 667 F.3d 965, 977–80 (9th Cir. 2011). 7 “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, 8 supported by sufficient evidence, to justify [the failure to exhaust a claim in state court].” 9 Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “While a bald assertion cannot 10 amount to a showing of good cause, a reasonable excuse, supported by evidence to 11 justify a petitioner's failure to exhaust, will.” Id. An indication that the standard is not 12 particularly stringent can be found in Pace v. DiGuglielmo, 544 U.S. 408 (2005), where 13 the Supreme Court stated that: “[a] petitioner’s reasonable confusion about whether a 14 state filing would be timely will ordinarily constitute ‘good cause’ to excuse his failure to 15 exhaust.” Pace, 544 U.S. at 416 (citing Rhines, 544 U.S. at 278). See also Jackson v. 16 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (the application of an “extraordinary 17 circumstances” standard does not comport with the “good cause” standard prescribed 18 by Rhines). 19 Here, McFadden briefly states that he has no education or experience in legal 20 matters and was unaware that he had not exhausted some of his claims (ECF No. 16). 21 However, “[u]nspecific, unsupported excuses for failing to exhaust – such as unjustified 22 ignorance,” do not satisfy the good cause requirement. Blake v. Baker, 745 F.3d 977, 23 981 (9th Cir. 2014) (interpreting the holding in Wooten v. Kirkland, 540 F.3d 1019, 1024 24 (9th Cir. 2008)). Notably, McFadden raised several ineffective assistance of counsel 25 claims in a timely pro se state postconviction habeas corpus petition, and he raised 26 them on appeal of the denial of that state petition to the Nevada Supreme Court 27 (exhibits 26, 38, 45).1 Thus, his alleged lack of familiarity with the state-court process is 1 belied by the record in any event. McFadden also asserts that his unexhausted claims 2 are “certainly not meritless,” (ECF No. 16, p. 2), but this wholly unsupported, conclusory 3 statement fails to demonstrate that the claims have merit. McFadden has not 4 demonstrated under Rhines that a stay should be granted. His motion, therefore, is 5 denied. 6 As the court denies the stay, McFadden must now elect from two options:
7 1. He may submit a sworn declaration voluntarily abandoning the unexhausted claims in his federal habeas petition, and proceed only 8 on the exhausted claims; or 9 2. He may return to state court to exhaust his unexhausted 10 claims, in which case his federal habeas petition will be denied without prejudice. 11
12 Petitioner is advised to familiarize himself with the limitations periods for filing 13 federal habeas petitions contained in 28 U.S.C. § 2244(d), as those limitations periods 14 may have a direct and substantial effect on whatever choice he makes regarding his 15 petition. 16 IT IS THEREFORE ORDERED that petitioner’s motion for appointment of 17 counsel (ECF No. 18) is DENIED. 18 IT IS FURTHER ORDERED that petitioner’s motion for stay and abeyance (ECF 19 No. 16) is DENIED. 20 IT IS FURTHER ORDERED that petitioner has 30 days to either: (1) inform this 21 court in a sworn declaration that he wishes to formally and forever abandon the 22 unexhausted grounds for relief in his federal habeas petition and proceed on the 23 exhausted grounds; OR (2) inform this court in a sworn declaration that he wishes to 24 dismiss this petition without prejudice in order to return to state court to exhaust his 25 unexhausted claims. 26 IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted 27 grounds, respondents have 30 days from the date petitioner serves his declaration of 1 answer should contain all substantive and procedural arguments as to all surviving 2 grounds of the petition and comply with Rule 5 of the Rules Governing Proceedings in 3 the United States District Courts under 28 U.S.C. §2254. 4 IT IS FURTHER ORDERED that petitioner has 30 days following service of 5 respondents’ answer in which to file a reply. 6 IT IS FURTHER ORDERED that if petitioner fails to respond to this order within 7 the time permitted, this case may be dismissed. 8 IT IS FURTHER ORDERED that respondents’ motion to extend time to file a 9 response to the motion for stay (ECF No. 19) is GRANTED nunc pro tunc. 10 11 DATED: 14 October 2021. 12
UNITED STATES DISTRICT JUDGE 14
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