Moran v. Warden LCC

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 ***

6 MARVIN MORAN, Case No. 3:21-cv-00050-MMD-WGC

7 Petitioner, ORDER v. 8 LOVELOCK CORRECTIONAL CENTER 9 WARDEN, et al.,

10 Respondents.

11 12 This habeas matter is before the Court on Petitioner Marvin Moran’s Motion for Stay 13 and Abeyance (ECF No. 15) and Motion for Enlargement of Time (ECF No. 14). No 14 opposition has been filed to either motion and the deadline to do so has expired. For the 15 reasons discussed below, Petitioner’s Motion for Stay and Abeyance is granted and 16 Motion for Enlargement of Time is denied as moot. 17 Petitioner challenges a conviction and sentence imposed by the Eighth Judicial 18 District Court for Clark County (“state court”). A jury found him guilty of burglary while in 19 possession of a deadly weapon, first degree kidnapping with use of a deadly weapon, and 20 murder with use of a deadly weapon. Petitioner seeks a stay and abeyance to exhaust 21 Grounds 1, 3, 4 and 9. (ECF No. 15.) 22 Federal courts may not grant a writ of habeas corpus brought by a person in 23 custody pursuant to a state court judgment unless “the applicant has exhausted the 24 remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). This exhaustion 25 requirement is “grounded in principles of comity” as it gives states “the first opportunity to 26 address and correct alleged violations of state prisoner’s federal rights.” Coleman v. 27 Thompson, 501 U.S. 722, 731 (1991). In general, a federal district court must dismiss 28 an unexhausted petition without prejudice. See Coleman, 501 U.S. at 731 (noting that the 1 Supreme Court “has long held that a state prisoner’s federal habeas petition should be 2 dismissed if the prisoner has not exhausted available state remedies as to any of his 3 federal claims”); Castille v. Peoples, 489 U.S. 346, 349 (1989) (stating habeas petitions 4 should be dismissed if state remedies have not been exhausted as to any federal claims). 5 A district court is authorized to stay an unexhausted petition in “limited 6 circumstances,” to allow a petitioner to present unexhausted claims to the state court 7 without losing his right to federal habeas review due to the relevant one-year statute of 8 limitations. Rhines v. Weber, 544 U.S. 269, 273-75 (2005); Mena v. Long, 813 F.3d 907, 9 912 (9th Cir. 2016) (holding that district courts have authority to stay and hold in 10 abeyance both mixed petitions and “fully unexhausted petitions under the circumstances 11 set forth in Rhines”). Under the Rhines test, “a district court must stay a mixed petition only 12 if: (1) the petitioner has ‘good cause’ for his failure to exhaust his claims in state court; (2) 13 the unexhausted claims are potentially meritorious; and (3) there is no indication that the 14 petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 15 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 16 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does 17 not require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. 18 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)). But courts “must interpret whether a petitioner 19 has ‘good cause’ for a failure to exhaust in light of the Supreme Court’s instruction 20 in Rhines that the district court should only stay mixed petitions in ‘limited circumstances.”’ 21 Wooten, 540 F.3d at 1024 (citing Jackson, 425 F.3d at 661). Courts must also “be mindful 22 that AEDPA aims to encourage the finality of sentences and to encourage petitioners to 23 exhaust their claims in state court before filing in federal court.” Wooten, 540 F.3d at 1024 24 (citing Rhines, 544 U.S. at 276-77). 25 A statement that a habeas petitioner was pro se during his state post-conviction 26 proceedings is sufficient to constitute good cause for failing to exhaust claims. See Dixon 27 v. Baker, 847 F.3d 714, 721 (9th Cir. 2017) (citing Martinez v. Ryan, 566 U.S. 1, 17 28 (2012)). “A petitioner who is without counsel in state postconviction proceedings cannot 1 be expected to understand the technical requirements of exhaustion and should not be 2 denied the opportunity to exhaust a potentially meritorious claim simply because he lacked 3 counsel.” Dixon, 847 F.3d at 721. 4 Petitioner argues that good cause exists because he was reasonably confused and 5 because he did not have counsel in state post-conviction proceedings. (ECF No. 15.) The 6 Court finds that Petitioner has established good cause exists for his failure to exhaust in 7 state court. The Court further finds that the unexhausted grounds are not “plainly 8 meritless,” and that Petitioner has not engaged in intentionally dilatory litigation tactics. 9 Accordingly, the Court will grant Petitioner’s motion for stay and abeyance. 10 It is therefore ordered that Petitioner Marvin Moran’s Motion for Stay and Abeyance 11 (ECF No. 15) is granted. 12 It is further ordered that Petitioner’s Motion for Enlargement of Time (ECF No. 14) 13 is denied as moot. 14 It is further ordered that this action is stayed pending exhaustion of the unexhausted 15 claims in the petition for writ of habeas corpus. 16 It is further ordered that the grant of a stay is conditioned upon Petitioner filing, if 17 same is not already pending, a state post-conviction petition or other appropriate 18 proceeding in state district court within 45 days of the date of entry of this order and 19 returning to federal court with a motion to reopen within 45 days of issuance of the 20 remittitur by the Supreme Court of Nevada at the conclusion of all state court 21 proceedings.1 22 It is further ordered that, with any motion to reopen filed following completion of all 23 state court proceedings pursued, Petitioner: (a) must attach supplemental exhibits 24 containing the new state court pleadings and the state court written decisions thereon; and 25 (b) if Petitioner intends to amend the federal petition, must file a motion for leave to amend 26

27 1If certiorari review will be sought or thereafter is being sought, either party may move to extend the stay for the duration of such proceedings. Cf. Lawrence v. Florida, 549 28 U.S. 327, 335 (2007). 1 || along with the proposed verified amended petition or a motion for extension of time to 2 || move for leave. 3 The Clerk of Court is directed to administratively close this action until such time as 4 || the Court grants a motion to reopen the matter. 5 It is further ordered that the Court will reset the briefing schedule upon reopening 6 || the case and lifting the stay. No claims are dismissed by this order, and a reopened action 7 || will proceed under the same docket number. 8 It is further ordered that Respondents’ Motion to Dismiss (ECF No. 8) is denied 9 || without prejudice to the reassertion of any and all defenses then applicable following the 10 || stay, following upon a scheduling order directing a response. 11 DATED THIS 20" Day of October 2021.

13 14 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28