Fleming v. Hutchinson

[1] 2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA [3] 4 Boivae Fleming, Case No. 2:20-cv-01983-CDS-EJY 5 Petitioner Order Granting Petitioner’s Motion to Stay Case v. [6] [ECF No. 45] 7 Hutchinson, et al., 8 Respondents [9] 10 This habeas matter is before me on petitioner Boivae Fleming’s unopposed motion to 11 stay. ECF No. 45. Fleming challenges his 2014 judgment of conviction and sentence imposed 12 in the Eighth Judicial District Court, Clark County, Nevada. I granted respondents’ motion 13 to dismiss, in part, finding Claim Six unexhausted. ECF No. 44. Fleming seeks a stay and 14 abeyance to exhaust Claim Six in state court. 15 A district court is authorized to stay an unexhausted petition in “limited 16 circumstances,” to allow a petitioner to present unexhausted claims to the state court without 17 losing his right to federal habeas review due to the relevant one-year statute of 18 limitations. Rhines v. Weber, 544 U.S. 269 , 273–75 (2005); Mena v. Long, 813 F.3d 907, 912 (9th Cir. 19 2016) (holding that district courts have authority to stay and hold in abeyance both mixed 20 petitions and “fully unexhausted petitions under the circumstances set forth 21 in Rhines”). Under the Rhines test, “a district court must stay a mixed petition only if: (1) the 22 petitioner has ‘good cause’ for his failure to exhaust his claims in state court; (2) the 23 unexhausted claims are potentially meritorious; and (3) there is no indication that the 24 petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. Kirkland, 540 F.3d 1019 , 25 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278 ). 26 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does not 27 require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. Roe, 425 F.3d 1 654 , 661–62 (9th Cir. 2005)). But courts “must interpret whether a petitioner has ‘good 2 cause’ for a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the 3 district court should only stay mixed petitions in ‘limited circumstances’.” Wooten, 540 4 F.3d at 1024 (citing Jackson, 425 F.3d at 661 ). Courts must also “be mindful that AEDPA aims 5 to encourage the finality of sentences and to encourage petitioners to exhaust their claims in 6 state court before filing in federal court.” Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 7 276–77). 8 Fleming argues that good cause exists because he was reasonably confused as to 9 whether Claim Six was exhausted. Fleming presented his claim in state court, but the court 10 did not reach the merits of his claim because he did not attach a transcript. I find that 11 Fleming has established good cause exists for his failure to exhaust in state court. I further 12 find that the unexhausted grounds are not “plainly meritless,” and that Fleming has not 13 engaged in intentionally dilatory litigation tactics. Accordingly, I will grant Fleming’s 14 motion for stay and abeyance. 15 It is therefore ordered that petitioner’s unopposed motion to stay [ECF No. 45] is 16 granted. 17 It is further ordered that this action is STAYED pending exhaustion of the 18 unexhausted Claim Six. 19 It is further ordered that the grant of a stay is conditioned upon Fleming filing, if 20 same is not already pending, a state post-conviction petition or other appropriate 21 proceeding in state district court within forty-five (45) days of entry of this order and 22 returning to federal court with a motion to reopen within forty-five (45) days of issuance of 23 the remittitur by the Supreme Court of Nevada at the conclusion of all state court 24 proceedings.1 [26] 27 1 If 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 U.S. 327, 335 (2007). 1 It is further ordered that, with any motion to reopen filed following completion of all 2 state court proceedings pursued, Fleming: (a) shall attach supplemental exhibits containing 3 the new state court pleadings and the state court written decisions thereon; and (b) if 4 Fleming intends to amend the federal petition, shall file a motion for leave to amend along 5 with the proposed amended petition or a motion for extension of time to move for leave. 6 It is further ordered that the Clerk of Court shall ADMINISTRATIVELY CLOSE 7 this action until such time as I grant a motion to reopen the matter. 8 It is further ordered that I will reset the briefing schedule upon reopening the case 9 and lifting the stay. 10 DATED: July 14, 2023 [12] Cristina D. Silva 13 United States District Judge