White v. Johnson

Opinion

2 UNITED STATES DISTRICT COURT

3 DISTRICT OF NEVADA

4 TROY WHITE, Case No. 2:21-cv-01800-GMN-VCF 5 Petitioner, 6 ORDER v. 7

8 CALVIN JOHNSON, et al.,

9 Respondents.

10 11 In this habeas corpus action, the petitioner, Troy White, represented by 12 appointed counsel, filed an amended habeas petition on May 31, 2022 (ECF No. 13). 13 Respondents filed a motion to dismiss on September 28, 2022 (ECF No. 23), arguing 14 that several of the claims in White’s amended petition are either unexhausted or 15 exhausted but procedurally defaulted. White then filed a motion for stay (ECF No. 25), 16 stating that he has initiated a state habeas action—his second—to exhaust claims not 17 previously presented in state court and requesting a stay pending completion of that 18 state habeas action. The Court set a schedule for concurrent briefing of the motion to 19 dismiss and motion for stay, with Respondents to respond to the motion for stay by 20 December 9, 2022 (ECF No. 27). On December 10, 2022 (a day late), Respondents 21 filed a motion for extension of time to respond to the motion for stay (ECF No. 28). 22 The Court granted that motion and extended to December 23, 2022, the time for their 23 response to the motion for stay (ECF No. 29). 24 Respondents did not respond to the motion for stay by the December 23 due 25 date for their response. “The failure of an opposing party to file points and authorities in 26 response to any motion, except a motion under Fed. R. Civ. P. 56 or a motion for 27 attorney’s fees, constitutes a consent to the granting of the motion.” LR 7-2(d). 1 In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court 2 circumscribed the discretion of federal district courts to impose stays to facilitate habeas 3 petitioners’ exhaustion of claims in state court. The Rhines Court stated:

4 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to 5 present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for 6 the petitioner’s failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would 7 abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for 8 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 9 the State”).

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11 [I]t likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his 12 failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory 13 litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition. 14 15 Rhines, 544 U.S. at 277–78. 16 White asserts in his motion for stay, with respect to his claims of ineffective 17 assistance of counsel in Claims 1(A), 1(B) and 1(C) of his amended petition, that there 18 is good cause for his failure to previously exhaust those claims in state court on account 19 of his state post-conviction counsel’s failure to raise the claims and present evidence in 20 state court in support of them (ECF No. 25 at 4). White asserts that those claims are not 21 plainly meritless (Id. at 6–7). White also asserts that he has not engaged in intentionally 22 dilatory litigation tactics. (Id. at 7). Respondents have not contested any of these 23 assertions. 24 The Court will grant White’s motion for stay and will stay this action pending 25 completion of his state-court proceedings. The Court’s intention is that this will be the 26 last time that the Court imposes a stay to facilitate White’s exhaustion of claims in state 27 court. White must exhaust all his unexhausted claims in state court during the stay 1 IT IS THEREFORE ORDERED that Petitioner’s Motion for a Stay and Abeyance 2 (ECF No. 25) is GRANTED. This action is stayed. The stay will remain in effect while 3 Petitioner exhausts, in state court, his unexhausted claims for habeas corpus relief. 4 IT IS FURTHER ORDERED that Respondents’ Motion to Dismiss (ECF No. 23) 5 is DENIED as moot. 6 IT IS FURTHER ORDERED that following the conclusion of Petitioner’s state- 7 court proceedings, Petitioner must, within 30 days, make a motion to lift the stay of this 8 action. 9 IT IS FURTHER ORDERED that this action will be subject to dismissal, upon a 10 motion by Respondents, if Petitioner does not comply with the time limits in this order, 11 or if he otherwise fails to proceed with diligence during the stay imposed by this order. 12 IT IS FURTHER ORDERED that the Clerk of the Court is directed to 13 administratively close this case. 14 15 DATED THIS __9___ day of _______J_a_n__u_a_r_y__ ______, 2023.

17 GLORIA M. NAVARRO 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27