Reed v. Nevada Attorney General

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4

5 KEON REED, Case No. 3:24-cv-00319-ART-CLB

6 Petitioner, ORDER v. 7

8 NEVADA ATTORNEY GENERAL, et al.,

9 Respondents.

10 11 This habeas matter is before the Court on Petitioner Keon Reed’s Motion to 12 Stay the case (ECF No. 9). Respondents filed a non-opposition (ECF No. 11). The 13 Court will grant the motion to stay the case. 14 On August 11, 2004, the Second Judicial District Court for Washoe 15 County, Nevada imposed a judgment sentencing Reed as a habitual criminal to 16 10 years to life imprisonment after Reed pleaded guilty to robbery, resisting a 17 public officer with a dangerous weapon, possession of a stolen motor vehicle, 18 burglary, and assault with a deadly weapon. ECF No. 10-2. Reed alleges he served 19 14 years imprisonment and remains on lifetime parole supervision. ECF No. 5 at 20 4. Reed alleges that on January 8, 2024, one of the prior convictions that was 21 used to adjudicate him a habitual criminal and impose a corresponding sentence, 22 was vacated by a federal court order. ECF Nos. 5 at 5–6; 10-6. 23 On July 22, 2024, Reed filed a petition for writ of habeas corpus under 28 24 U.S.C. § 2254 challenging his confinement under the August 11, 2004, judgment, 25 and unspecified subsequent amended judgment. ECF Nos. 5 at 1, 4; 10-2. In his 26 petition, Reed asserts two claims: (1) trial counsel was ineffective in failing to 27 object to the habitual criminal adjudication and sentence because one of the 28 alleged prior state convictions that was used to prove habitual criminal status 1 did not predate the crimes in the instant state case and therefore was not a 2 qualifying conviction; and (2) his rights to due process, equal protection, and 3 cruel and unusual punishment were violated at sentencing because new evidence 4 vacating a federal conviction that was used to prove habitual criminal status 5 demonstrates Reed is actually innocent of the habitual criminal adjudication and 6 sentence. ECF No. 5 at 3–6. On August 30, 2024, the Court granted Reed’s 7 motions for appointment of counsel. ECF No. 4. On November 12, 2024, Reed 8 filed a post-conviction state habeas petition to exhaust his two claims. ECF No. 9 10-7. On November 18, 2024, Reed filed the instant motion for stay and abeyance 10 so that he can exhaust the claims in state court. ECF No. 9 at 4-7. 11 A district court is authorized to stay an unexhausted petition in “limited 12 circumstances,” to allow a petitioner to present unexhausted claims to the state 13 court. See Rhines v. Weber, 544 U.S. 269, 277 (2005); Mena v. Long, 813 F.3d 14 907, 912 (9th Cir. 2016) (holding district courts have authority to stay and hold 15 in abeyance both mixed petitions and “fully unexhausted petitions under the 16 circumstances set forth in Rhines”). Under the Rhines test, “a district court must 17 stay a mixed petition only if: (1) the petitioner has ‘good cause’ for his failure to 18 exhaust his claims in state court; (2) the unexhausted claims are potentially 19 meritorious; and (3) there is no indication that the petitioner intentionally 20 engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019, 1023 21 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). The Ninth Circuit has 22 acknowledged that the Rhines “good cause” standard does not require 23 “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. Roe, 24 425 F.3d 654, 661–62 (9th Cir. 2005)). 25 Reed claims there is good cause to grant the stay because he has colorable 26 arguments that he is actually innocent of his sentence under Nevada law, his 27 claims are not plainly meritless, and he has not engaged in dilatory tactics. ECF 28 No. 9 at 4-7. The Court agrees. 1 IT IS THEREFORE ORDERED that Petitioner Keon Reed’s Motion to Stay 2 || (ECF No. 9) is GRANTED. 3 It is further ordered that this action is STAYED pending exhaustion of 4 || Reed’s unexhausted claims. 5 It is further ordered that the grant of a stay is conditioned upon Reed 6 || litigating his pending state post-conviction petition or other appropriate 7 || proceeding in state court and returning to federal court with a motion to reopen 8 || within forty-five (45) days of issuance of the remittitur by the Supreme Court of 9 || Nevada at the conclusion of all state court proceedings. 10 It is further ordered that the Clerk of Court is directed to 11 |} ADMINISTRATIVELY CLOSE this action until such time as the Court grants a 12 || motion to reopen the matter. 13 It is further ordered that the Court will reset the briefing schedule upon 14 || reopening the case and lifting the stay. 15 16 DATED THIS 6th day of December 2024. 17 18 Awe jlosed jen 19 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28