McKnight v. Warden Baker

[2] 3 UNITED STATES DISTRICT COURT [4] DISTRICT OF NEVADA [5] * * * 6 DERRICK LAMAR MCKNIGHT, Case No. 3:17-cv-00681-MMD-CLB 7 Petitioner, ORDER [8] v. [9] WARDEN BAKER, et al., [10] Respondents. [11] 12 I. SUMMARY 13 In his amended 28 U.S.C. § 2254 habeas corpus petition Derrick Lamar McKnight 14 challenges his Clark County, Nevada conviction by a jury of charges including robbery 15 and first-degree murder with use of a deadly weapon. (ECF No. 48.) He is serving a term 16 of life without the possibility of parole. (ECF No. 56-18 (Exhibit (“Exh.”) 68).) Respondents 17 have filed a Renewed Motion to Dismiss (“Motion”), arguing that the original and amended 18 petition are untimely, that no claims relate back to a timely petition, and that some claims 19 are either procedurally defaulted or unexhausted. (ECF No. 74.)1 The Court concludes 20 that the original petition is timely and that some claims from the amended petition relate 21 back and are therefore timely. Several claims of ineffective assistance of trial or appellate 22 counsel are unexhausted. McKnight also asks for a stay of this case so that he may return 23 to state court to present his unexhausted ineffective assistance claims. Because 24 McKnight was never granted counsel throughout his state postconviction proceedings, 25 the Court grants a stay and abeyance. 26 /// 27 /// 1 II. BACKGROUND 2 A. State-Court Proceedings 3 McKnight’s convictions arose from an incident in which he and Timothy Burnside 4 followed Kenneth Hardwick when he drove out of the Mandalay Bay casino in Las Vegas 5 and robbed and shot Hardwick in a Jack in the Box drive-through, killing him. (See ECF 6 No. 55-48 (Exh. 48 at 13-29).) McKnight and Burnside were tried together. The jury found 7 McKnight guilty of burglary (count 1), conspiracy to commit robbery (count 2), robbery 8 with use of a deadly weapon (count 3), and first-degree murder with use of deadly weapon 9 (count 4). (ECF No. 56-7 (Exh. 57).) At the penalty phase, the jury sentenced McKnight 10 to life without the possibility of parole for the murder count.2 (ECF No. 56-12 (Exh. 62).) 11 Judgment of conviction was entered on August 18, 2010. (ECF No. 56-18 (Exh. 68).) 12 The Nevada Supreme Court denied McKnight’s direct appeal in December 2015. 13 (ECF No. 56-48 (Exh. 98).) The state district court declined to appoint counsel for 14 McKnight’s state postconviction petition. The Nevada Supreme Court affirmed the denial 15 of his state postconviction petition in June 2017. (ECF No. 57-17 (Exh. No. 117).) 16 McKnight initiated a pro se federal habeas action in November 2017. (ECF No. 1-1.) Next, 17 in August 2018 he filed a second state postconviction petition. (ECF No. 57-12 (Exh. 18 122).) The state district court dismissed the petition as untimely, successive, and an 19 abuse of the writ, finding that McKnight failed to demonstrate good cause and actual 20 prejudice or a fundamental miscarriage of justice. (ECF No. 57-13 (Exh. 123).) The 21 Nevada Supreme Court affirmed the denial in June 2019. (ECF No. 57-32 (Exh. 132).) 22 The court concluded that the district court did not err in rejecting McKnight’s good cause [24] 2The State originally sought the death penalty against both defendants but 25 withdrew its intent as to McKnight before trial. The jury sentenced Burnside to death. (See ECF No. 56-13 (Exh. 63).) The state district court sentenced McKnight as follows: count [26] 1 – 22 to 96 months, count 2 – 13 to 60 months, count 3 – 35 to 156 months, with an 27 equal and consecutive 35 to 156 months for the deadly weapon enhancement, count 4 – life without the possibility of parole, with an equal and consecutive life without the 1 argument and that he failed to demonstrate actual innocence as a gateway through the 2 procedural bars. 3 B. Federal Habeas Proceedings 4 As noted above, in November 2017, McKnight dispatched his pro se federal 5 habeas petition for mailing. (ECF No. 1-1.) The Court ultimately appointed counsel under 6 the Criminal Justice Act, and McKnight filed a counseled amended petition. (ECF No. 48.) 7 He alleges 10 grounds for relief: [8] Ground 1: Trial counsel rendered ineffective assistance in violation of his Sixth and Fourteenth Amendment rights by: [9] 10 (a) Failing to identify the constitutional basis for his motion to suppress the improper and suggestive eyewitness identification 11 by Syncerrity Ray. [12] (b) Failing to consult with an eyewitness identification expert and 13 have the expert testify at the suppression hearing and trial. 14 (c) Failing to investigate and present a defense theory that this was an afterthought robbery. [15] (d) Failing to investigate other eyewitnesses and call them to testify [16] at trial. [17] (e) Failing to allow McKnight to testify in his own defense. [18] (f) Failing to object to the prosecution’s statement during closing 19 argument that the jury did not need to understand or determine the reason Hardwick was targeted. [20] 21 (g) Failing to object to prosecution becoming an unsworn witness when prosecutor argued that the JIB video showed that McKnight 22 was the lookout for Burnside when there was no video footage of McKnight. [23] (h) Failing to object, move to strike, and move for mistrial during the [24] penalty phase when Burnside’s attorney introduced testimony 25 from a witness who purportedly overheard McKnight and Burnside arguing, with McKnight stating: “I don’t fight people, I kill 26 people.” 27 (i) Failing to investigate and introduce mitigation evidence and move preliminary hearing transcripts from an unrelated murder case [1] that was subsequently dismissed. [2] (j) Cumulative effect of trial counsel’s ineffective assistance. [3] 4 Ground 2: Appellate counsel was ineffective for failing to argue that the denial of the motion to suppress the improper and suggestive [5] eyewitness identification of Syncerrity Ray violated McKnight’s Fifth 6 and Fourteenth Amendment due process rights. 7 Ground 3: The trial court allowed the prosecution to improperly dismiss three potential jurors of color during voir dire and also 8 allowed the executive director of a white supremacist group to serve on the jury, in violation of McKnight’s Fifth and Fourteenth [9] Amendment equal protection rights. [10] Ground 4: The trial court failed to hold a hearing or make an inquiry 11 into allegations that a juror was sleeping for lengthy periods during the trial in violation of McKnight’s due process rights. [12] Ground 5: The trial court failed to sever McKnight’s trial from [13] Burnside’s death penalty trial, and Burnside’s counsel introduced 14 harmful and prejudicial evidence against McKnight in violation of his Sixth Amendment right to an impartial jury. [15] Ground 6: The trial court allowed four jury instructions that confused 16 the jury about the standard to prove guilty beyond a reasonable doubt in violation of McKnight’s Fifth and Fourteenth Amendment fair [17] trial rights. [18] Ground 7: The trial court allowed the prosecution to introduce at trial 19 the preliminary transcript from an unrelated murder case against McKnight which was later dismissed. [20] Ground 8: The State engaged in prosecutorial misconduct in [21] violation of McKnight’s fair trial rights when it used information from 22 a pending and unrelated murder as aggravating evidence during the penalty phase and then later dismissed the unrelated case due to 23 identification issues. [24] Ground 9: The cumulative effect of the errors of the trial court and trial and appellate counsel, and prosecutorial misconduct deprived [25] McKnight of a fair trial. [26] Ground 10: McKnight is actually innocent, thus his continued 27 incarceration violates the Eighth Amendment’s prohibition of cruel 1 (ECF No. 48 at 4-9.) 2 Respondents now move to dismiss the petition, arguing that it is untimely, several 3 grounds do not relate back to a timely petition and/or are unexhausted, and one ground 4 is procedurally defaulted. (ECF No. 74.) 5 III. DISCUSSION 6 A. McKnight’s Federal Petition is Timely 7 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes a one-year 8 statute of limitations on the filing of federal habeas corpus petitions. See 28 U.S.C. § 9 2244(d). The one-year time limitation can run from the date on which a petitioner’s 10 judgment became final by conclusion of direct review, or the expiration of the time for 11 seeking direct review. See 28 U.S.C. § 2244 (d)(1)(A). Where a defendant fails to seek a 12 writ of certiorari from the United States Supreme Court, AEDPA’s one-year limitations 13 period begins to run on the date the 90-day period expires. Supreme Court Rule 13. 14 Here, McKnight timely appealed, and the Nevada Supreme Court affirmed his 15 convictions on December 18, 2015. (ECF No. 56-48 (Exh. 98).) He did not file a petition 16 for a writ of certiorari, so the AEDPA limitations period began to run on March 18, 2016. 17 See Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001). 18 McKnight timely filed a state postconviction habeas corpus petition on September 19 2, 2016. (Exh. 102.) The state district court denied the petition because it failed to raise a 20 single claim and was “devoid of any content or any argument in support of relief.” (ECF 21 No. 57-5 at 3 (Exh. 105).) At the close of his petition, McKnight had asked for counsel 22 because he was indigent, did not understand the law, and required appointed counsel to 23 help him file a supplemental petition. The court found that because McKnight failed to 24 raise a single issue, he failed to present any issue of particular difficulty that would warrant 25 appointment of counsel. (Id.) 26 McKnight argued on appeal that the district court abused its discretion in denying 27 his petition without appointing counsel. (ECF No. 57-10 (Exh. 110).) The Nevada 1 holding that McKnight failed to identify any issues in his state petition, and therefore failed 2 to show that his case presented difficult issues or that he needed counsel to conduct 3 discovery. (ECF No. 57-17 at 3 (Exh. 117).) The appellate court also concluded that 4 McKnight’s bare assertion of ignorance of the law did not demonstrate an inability to 5 comprehend the proceedings compelling appointment of counsel. (Id.) 6 A properly filed petition for state postconviction relief can toll the period of 7 limitations. See 28 U.S.C. § 2244 (d)(2). A state petition is “properly filed” “when its 8 delivery and acceptance are in compliance with the applicable laws and rules governing 9 filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). The governing laws and rules “usually 10 prescribe, for example, the form of the document, the time limits upon its delivery, the 11 court and office in which it must be lodged, and the requisite filing fee.” Id.3 The United 12 States Supreme Court in Artuz also distinguished whether an application has been 13 “properly filed” from whether the claims contained in the application have merit and are 14 not procedurally barred. Id. at 9 ; see also Pace, 544 U.S. at 412-16. 15 Here, McKnight timely filed his first state petition in September 2016. (ECF No. 5716 2 (Exh. 102).) He filed the petition pro se, on the court’s form. McKnight has now filed a 17 declaration with this Court stating that he called his appellate counsel after his convictions 18 were affirmed and asked what he could do next. (ECF No. 76-1 (Pet. Exh. 204).) Appellate 19 counsel sent him the form state habeas petition; counsel had typed in several sections 20 and had placed pink tabs where McKnight was supposed to fill information in and sign. 21 (See ECF No. 57-2 (Exh. 102).) Under paragraph 23, where it directs petitioner to state 22 concisely every ground and briefly summarize supporting facts, counsel had typed: “I AM 23 INDIGENT AND DO NOT UNDERSTAND THE LAW AND NEED COUNSEL 24 APPOINTED TO HELP ME COMPLETE THIS PETITION AND TO FILE A [25] 3For example, when a postconviction petition is untimely under state law, ‘that [is] [26] the end of the matter’ for the purposes of § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 27 408, 414 (2005). Under Nevada state law, a habeas petition must be filed within one year after entry of the judgment of conviction if no appeal is taken, or, if an appeal is taken, 1 SUPPLEMENTAL PETITION.” Id. at 6. The Clerk of Court accepted the petition and filed 2 it on September 2, 2016. See id. 3 Respondents briefly argue that because McKnight’s petition did not present any 4 habeas claims it is not “properly filed” for the purposes of tolling the AEDPA limitations 5 period. (ECF No. 74 at 8.) But they only cite Pace, which held that a petition that was 6 untimely under state law was not “properly filed” and did not toll the federal statute of 7 limitations. Artuz, however, described “properly filed” as whether the petition was 8 delivered and accepted in compliance with applicable state laws and rules governing 9 filing. 531 U.S at 8-9. Artuz also differentiated between what might be viewed as the more 10 clerical requirements—a document on the proper form, timely filed in the correct court, 11 with the correct filing fee—from whether the document set forth meritorious claims that 12 weren’t procedurally defaulted. It appears that “properly filed” under § 2244(d)(2) turns on 13 complying with these more technical filing requirements, rather than an examination of 14 the claims themselves. This Court finds that McKnight’s first state petition was “properly 15 filed,” and therefore, the one-year federal statute of limitations was tolled while that 16 petition was pending. The parties do not dispute that if McKnight’s first state petition was 17 timely, his federal habeas action was timely commenced. 18 B. Relation Back 19 Next, Respondents argue that several claims in McKnight’s amended petition do 20 not relate back to a timely-filed petition. (ECF No. 74 at 9-14.)4 A new claim in an amended 21 petition that is filed after the expiration of the AEDPA one-year limitation period will be 22 timely only if the new claim relates back to a claim in a timely-filed pleading under Rule 23 15(c) of the Federal Rules of Civil Procedure, on the basis that the claim arises out of “the [26] 4The Court rejects Respondents’ disingenuous argument that McKnight failed to 27 properly incorporate the claims from his direct appeal in his original petition. McKnight explicitly incorporated the claims in the direct appeal, which he included with his petition. 1 same conduct, transaction or occurrence” as a claim in the timely pleading.5 Mayle v. 2 Felix, 545 U.S. 644 (2005). In Mayle, the United States Supreme Court held that habeas 3 claims in an amended petition do not arise out of “the same conduct, transaction or 4 occurrence” as claims in the original petition merely because the claims all challenge the 5 same trial, conviction or sentence. 545 U.S. at 655-64 . Rather, under the construction of 6 the rule approved in Mayle, Rule 15(c) permits relation back of habeas claims asserted 7 in an amended petition “only when the claims added by amendment arise from the same 8 core facts as the timely filed claims, and not when the new claims depend upon events 9 separate in ‘both time and type’ from the originally raised episodes.” 545 U.S. at 657 . In 10 this regard, the reviewing court looks to “the existence of a common ‘core of operative 11 facts’ uniting the original and newly asserted claims.” A claim that merely adds “a new 12 legal theory tied to the same operative facts as those initially alleged” will relate back and 13 be timely. 545 U.S. at 659 , 659 n.5; see also Ha Van Nguyen v. Curry, 736 F.3d 1287 , 14 1297 (9th Cir. 2013). 15 a. Grounds 1(a), 1(i), 1(j), 2, 8 and 9 relate back 16 McKnight contends in ground 1(a) that trial counsel failed to identify the 17 constitutional basis for his motion to suppress the improper and suggestive eyewitness 18 identification by Syncerrity Ray. (ECF No. 48 at 4-5.) In ground 2 McKnight argues that 19 appellate counsel failed to identify the constitutional basis for the trial court’s error in 20 denying the motion to suppress the eyewitness identification by Ray. (Id. at 7.) 21 In his original petition, McKnight argued that the trial court erred when it denied the 22 motion to suppress the improper and suggestive eyewitness identification. (ECF No. 6 at 23 32-35.) The two claims in the amended petition turn on the legal theory of ineffective 24 assistance of counsel, but the Court concludes that the claims arise from the same core 25 facts, namely, the litigation and adjudication of the motion to suppress the witness [27] 1 identification. See Nguyen, 736 F.3d at 1287 .6 Grounds 1(a) and 2 relate back and are 2 therefore timely. 3 McKnight next contends in ground 1(i) that trial counsel failed to investigate and 4 introduce mitigation evidence and move to counter or eliminate aggravating evidence 5 such as the preliminary hearing transcripts from an unrelated murder case that was 6 subsequently dismissed. (ECF No. 48 at 6.) In ground 8 McKnight contends that the State 7 engaged in prosecutorial misconduct by using information from a pending and unrelated 8 murder case as aggravating evidence during the penalty phrase. The State later 9 dismissed that case due to identification issues. (ECF No. 48 at 8.) 10 In McKnight’s original petition, he claimed that the trial court improperly admitted 11 at sentencing the preliminary hearing transcript related to a separate pending murder 12 prosecution against him. Similar to the issue of the motion to suppress, here the Court 13 concludes that, while the amended claims are for ineffective assistance of counsel and 14 prosecutorial misconduct, the claims arise from the same core set of facts—the 15 introduction of the hearing transcript at sentencing. The Court holds that grounds 1(i) and 16 8 relate back and are timely. 17 In ground 1(j) McKnight asserts that trial counsel’s cumulative violations render his 18 convictions void and in ground 9 he argues that the cumulative and prejudicial errors of 19 the state district court, trial and appellate counsel, and prosecutorial misconduct entitle 20 him to habeas relief. (ECF No. 48 at 6, 8-9.) McKnight argued in his original petition that [21] 22 6Respondents argue that Nguyen conflicts with the Ninth Circuit’s earlier decision 23 in Schneider v. McDaniel, 674 F.3d 1144 (9th Cir. 2012). In Schneider, the appeals court held that the relation back doctrine did not apply where the original theory was based on 24 trial counsel’s alleged failures and the amended theory was based on the trial court’s alleged errors. See id. at 1151 . Respondents contend that Schneider controls because 25 when a subsequent three judge panel opinion conflicts with the opinion of an earlier three judge panel the earlier decision controls. (ECF No. 77 at 11 (citing Avagyan v. Holder, [26] 646 F.3d 672, 677 (9th Cir. 2011); Antonio v. Ward’s Cove Packing Company, Inc., 810 27 F.2d 1477 , 1478-79 (9th Cir. 1987)).) Nguyen makes no mention of the Schneider decision. The Court acknowledges this potential tension but remains persuaded that 1 the cumulative effect of errors during trial severely prejudiced him. (ECF No. 6 at 63.) 2 Grounds 1(j) and 9 also relate back and are therefore timely. 3 b. Ground 3 relates back in part 4 McKnight claims that the trial court violated his equal protection rights by allowing 5 the prosecution to discriminate against three jurors of color. (ECF No. 48 at 7.) He further 6 argues that the court improperly curtailed the defense from inquiring into a juror’s racial 7 bias. The court also disagreed with the defense that the juror, who stated that he was part 8 of a group that may be viewed as racist, was biased. In his original petition, McKnight 9 argued that the trial court violated his Fifth and Fourteenth Amendment rights when it 10 denied the defense’s Batson7 challenge as to those three jurors of color. (ECF No. 6 at 11 35-39.) This part of ground 3 in the amended petition clearly relates back. However, the 12 claim that the trial court did not permit the defense to further inquire into a fourth juror’s 13 potential racial bias involves separate facts and differs in time and type from the Batson 14 challenges raised in both the original and amended petition. The Batson challenge part 15 of ground 3 relates back and is timely. The claim about another juror’s potential racial 16 bias does not relate back; the Court dismisses that portion of ground 3 as untimely. 17 c. Grounds 5 and 10 are dismissed as untimely 18 McKnight argues in ground 5 that the trial court violated his Sixth Amendment right 19 to an impartial jury by failing to sever his trial from Burnside’s death penalty trial because 20 “Burnside’s trial attorney introduce[d] harmful prejudicial evidence against [McKnight].” 21 (ECF No. 48 at 8.) In his original petition, McKnight claimed that the trial court violated his 22 Sixth and Fourteenth Amendment rights to a fair and impartial jury because he had a 23 death-qualified jury when he should have been able to impanel a separate, non-death 24 qualified jury.8 (ECF No. 6 at 40-42.) These claims do not share a common core of [25] 7Batson v. Kentucky, 476 U.S. 79 (1986). [26] 27 8McKnight cites to the dissent in Buchanan v. Kentucky, which stated that “the evidence is overwhelming that death qualified juries are substantially more likely to 1 operative facts. McKnight originally alleged that he was denied an impartial jury because 2 he was not allowed to empanel a non-death qualified jury. But in the amended petition he 3 argues he was denied an impartial jury because of the harmful and prejudicial evidence 4 that his co-defendant’s counsel introduced against him. The Court concludes that ground 5 5 does not relate back to a timely-filed claim, and therefore, it is dismissed as untimely. 6 Finally, in ground 10 McKnight claims he is actually innocent. (ECF No. 48 at 9.) 7 He did not present this claim in his original petition.9 Ground 10 does not relate back to a 8 timely claim; the Court dismisses ground 10 as untimely. 9 d. Petitioner withdraws grounds 1(b), (c), (d), (e), (f), (g) (h) 10 Next, McKnight acknowledges that these seven subparts of ground 1 do not relate 11 to any timely-filed claims. (See ECF Nos. 6, 48, 75.) But he argues that he is entitled to 12 equitable tolling of these claims due to the COVID-19 pandemic, beginning late December 13 2019. (ECF No. 75 at 20-21.) The Court need not delve into a discussion of equitable 14 tolling, however, because McKnight’s AEDPA limitations period expired well before 15 December 2019. After his convictions were affirmed, 168 days elapsed before McKnight 16 filed his first state postconviction petition. (See ECF No. 56-48 (Exh. 98); ECF No. 57-2 17 (Exh. 102).) Because the Court deems that petition timely, the AEDPA clock re-started 18 the day after remittitur issued on October 25, 2017. (See ECF No. 57-20 (Exh. 120).) The 19 AEDPA limitations period expired on May 10, 2018, more than a year and a half before 20 the COVID pandemic began in about December 2019. Thus, McKnight’s argument that 21 he is entitled to equitable tolling due to the pandemic is unavailing. He alternatively states 22 that he wishes to withdraw these claims. Accordingly, grounds 1(b), 1(c), 1(d), 1(e), 1(f), 23 1(g), and 1(h) are withdrawn. 24 C. Exhaustion 25 Respondents next argue that the grounds that this Court has held relate back are 26 unexhausted. (ECF No. 74 at 15-18.) A federal court will not grant a state prisoner’s [27] 1 petition for habeas relief until the prisoner has exhausted his available state remedies for 2 all claims raised. See Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254 (b). A 3 petitioner must give the state courts a fair opportunity to act on each of his claims before 4 he presents those claims in a federal habeas petition. See O’Sullivan v. Boerckel, 526 5 U.S. 838, 844 (1999); see also Duncan v. Henry, 513 U.S. 364, 365 (1995). A claim 6 remains unexhausted until the petitioner has given the highest available state court the 7 opportunity to consider the claim through direct appeal or state collateral review 8 proceedings. See Casey v. Moore, 386 F.3d 896, 916 (9th Cir. 2004); Garrison v. 9 McCarthey, 653 F.2d 374, 376 (9th Cir. 1981). 10 a. Grounds 8 and 9 are exhausted 11 McKnight presented federal ground 8—the claim that the State engaged in 12 prosecutorial misconduct by using information from a pending and unrelated murder as 13 aggravating evidence during the penalty phase—on direct appeal. (See ECF No. 56-35 14 at 42-45 (Exh. 85); ECF No. 56-48 at 14-15 (Exh. 98).) This claim is exhausted. Ground 15 9 asserts cumulative error. (ECF No. 48 at 6, 8-9.) Ground 9 is exhausted as to any 16 exhausted claims that remain before the Court. 17 b. Grounds 1(a), 1(i), 1(j), and 2 are unexhausted 18 These four grounds all assert ineffective assistance of trial or appellate counsel. 19 McKnight did not present these claims to the state courts. (See ECF No. 56-35 (Exh. 85); 20 ECF No. 56-48 (Exh. 98); ECF No. 57-2 (Exh. 102); ECF No. 57-10 (Exh. 110); ECF No. 21 57-17 (Exh. 117); ECF No. 57-22 (Exh. 122); ECF No. 57-30 (Exh. 130); ECF No. 57-32 22 (Exh. 132).) These grounds are all unexhausted. 23 D. McKnight Seeks a Stay 24 Next, McKnight asks the Court to stay this case so that he may return to state court 25 with his unexhausted claims. (ECF No. 75 at 34-36.) In Rhines v. Weber, 544 U.S. 269 26 (2005), the Supreme Court placed limitations upon the discretion of the court to facilitate 27 habeas petitioners’ return to state court to exhaust claims. First, “stay and abeyance 1 is “is only appropriate when the district court determines there was good cause for the 2 petitioner’s failure to exhaust his claims first in state court.” Id. Moreover, “it likely would 3 be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition 4 if the petitioner had good cause for his failure to exhaust, his unexhausted claims are 5 potentially meritorious, and there is no indication that the petitioner engaged in 6 intentionally dilatory litigation tactics.” Id. at 278 . The Ninth Circuit has held that the 7 application of an “extraordinary circumstances” standard does not comport with the “good 8 cause” standard prescribed by Rhines. See Jackson v. Roe, 425 F.3d 654, 661-62 (9th 9 Cir. 2005). The court may stay a petition containing both exhausted and unexhausted 10 claims if: (1) the habeas petitioner has good cause; (2) the unexhausted claims are 11 potentially meritorious; and (3) petitioner has not engaged in dilatory litigation tactics. See 12 Rhines, 544 U.S. at 278 ; see also Wooten v. Kirkland, 540 F.3d 1019, 1023-24 (9th Cir. 13 2008). 14 Here, McKnight asks the Court to stay this action while he litigates a counseled 15 state postconviction petition. (ECF No. 75 at 34-36.) He argues that he has good cause 16 because he previously was without counsel in his state postconviction proceedings. See 17 Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017). He contends that his claims alleging 18 ineffective assistance of trial and appellate counsel related to his motion to suppress the 19 eyewitness identification (grounds 1(a), 2), his claim that trial counsel failed to challenge 20 aggravating evidence including the preliminary hearing transcripts from an unrelated 21 murder case which was subsequently dismissed (ground 1(i)), and trial counsel’s 22 cumulative error (ground 1(j)) entitle him to habeas relief. He also insists that he is not 23 engaging in dilatory tactics but seeks a stay in order to advance postconviction litigation. 24 Respondents oppose, arguing that granting a stay here contravenes AEDPA’s 25 goals of reducing delay and encouraging petitioners to follow state procedural rules. (ECF 26 No. 77 at 21-23.) They also urge that granting a stay would incentivize petitioners to 27 purposefully neglect to raise and/or develop the factual basis of their claims in accordance 1 benefit from de novo review in federal court. They argue that lack of counsel alone does 2 not establish good cause and that McKnight fails to demonstrate his claims are not plainly 3 meritless. 4 The Court concludes that a stay is warranted under these circumstances. The 5 Ninth Circuit Court of Appeals has held that a petitioner can show good cause for a stay 6 if he was without counsel in his state postconviction proceedings. See Dixon, 847 F.3d at 7 721. As a general matter, the Court is sympathetic to arguments that petitioners should 8 not be incentivized to fail to raise and develop the factual basis of their claims in 9 accordance with state law. But here McKnight clearly attempted to follow state procedural 10 rules and sought counsel to help him file a state petition. He followed the explicit direction 11 of his appellate counsel in attempting to file his first state postconviction petition. He 12 appealed the denial of that petition, and filed a petition for rehearing, repeatedly pointing 13 out that he had asked for counsel. The record simply does not suggest that McKnight 14 intentionally failed to raise and develop the factual basis of his claims in state court. His 15 claims are not plainly meritless. To be sure, McKnight faces an uphill battle in state court. 16 But he is serving a sentence of life without parole, and he has never had an opportunity 17 to pursue counseled state postconviction litigation. And of course, if McKnight obtains 18 relief in state court his petition here would be rendered moot. Accordingly, the Court 19 grants the motion for a stay and abeyance. 20 IV. CONCLUSION 21 It is therefore ordered that Respondents’ Motion to Dismiss (ECF No. 74) is 22 granted in part and denied in part as follows: 23 grounds 5 and 10 are dismissed; 24 ground 3 is dismissed in part—the claim that the court did not permit defense 25 counsel to further inquire into a prospective juror’s potential racial bias is dismissed; 26 grounds 1(b), 1(c), 1(d), 1(e), 1(f), 1(g) and 1(h) are withdrawn; 27 grounds 8 and 9 are exhausted; and 1 It is further ordered that Petitioner is granted a stay and abeyance. This action is 2 || stayed pending final resolution of Petitioner’s state postconviction proceedings. 3 It is further ordered that the grant of a stay is conditioned upon Petitioner returning 4 || to federal court with a motion to reopen the case within 45 days of the issuance of the 5 || remittitur by the state appellate court at the conclusion of the state-court proceedings. 6 It is further ordered that the Clerk of Court administratively close this action, until 7 || such time as the Court grants a motion to reopen the matter. 8 DATED THIS 6" Day of June 2024. [9] 10 ALA 11 □□□□□□□□□□□□□□□□□□□□□ 1 CHIEF UNITED STATES DISTRICT JUDGE