Hogarth v. Johnson

— 1 — — 2 — 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 ARLYN DAVID HOGARTH, Case No. 2:21-cv-251-KJD-EJY 6 Petitioner, v. ORDER — 7 — CALVIN JOHNSON, et al., — 8 — Respondents. — 9 — 10 This habeas matter is before the Court on Petitioner Arlyn David Hogarth’s unopposed 11 Motion to Stay Case (ECF No. 48). For the reasons discussed below, Petitioner’s motion is 12 granted. 13 I. Background 14 Hogarth challenges a judgment of conviction and sentence imposed by the Eighth 15 Judicial District Court. On appeal, the Nevada Supreme Court affirmed the judgment of 16 conviction. Hogarth did not file a state postconviction petition. He initiated this federal habeas 17 petition and Respondents filed a motion to dismiss. ECF Nos. 1, 15. In its order granting 18 Respondents’ motion to dismiss, in part, the Court dismissed Grounds 1 and 2. ECF No. 32. The 19 Court granted Hogarth’s motion for appointment of counsel and motions to extend time to file an 20 amended petition. ECF Nos. 33, 35, 45, 47. 21 Following appointment of counsel and upon investigation, Hogarth asserts that there is 22 compelling evidence that he is factually innocent, which his trial counsel failed to present. ECF 23 No. 48 at 2-3. Hogarth requests a stay to present such evidence to the state court and to litigate 24 his claims of ineffective assistance of counsel. Id. 25 II. Discussion 26 A district court is authorized to stay an unexhausted petition “limited circumstances,” to 27 allow a petitioner to present unexhausted claims to the state court without losing his right to 28 federal habeas review due to the relevant one-year statute of limitations. Rhines v. Weber, 544 1 U.S. 269 , 273–75 (2005); Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding that district 2 courts have authority to stay and hold in abeyance both mixed petitions and “fully unexhausted 3 petitions under the circumstances set forth in Rhines”). Under the Rhines test, “a district court 4 must stay a mixed petition only if: (1) the petitioner has ‘good cause’ for his failure to exhaust 5 his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is 6 no indication that the petitioner intentionally engaged in dilatory litigation tactics.” Wooten v. 7 Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (citing Rhines, 544 U.S. at 278). 8 The Ninth Circuit has acknowledged that the Rhines “good cause” standard does not 9 require “extraordinary circumstances.” Wooten, 540 F.3d at 1024 (citing Jackson v. Roe, 425 10 F.3d 654 , 661–62 (9th Cir. 2005)). But courts “must interpret whether a petitioner has ‘good 11 cause’ for a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the 12 district court should only stay mixed petitions in ‘limited circumstances’.” Wooten, 540 13 F.3d at 1024 (citing Jackson, 425 F.3d at 661). Courts must also “be mindful that AEDPA aims 14 to encourage the finality of sentences and to encourage petitioners to exhaust their claims in state 15 court before filing in federal court.” Wooten, 540 F.3d at 1024 (citing Rhines, 544 U.S. at 276– 16 77). 17 Hogarth asserts that he did not file a state postconviction petition because he was 18 unaware that this avenue of relief was available to him. In addition, he suffers from health issues, 19 including Parkinson’s disease, deafness, and symptoms of cognitive decline associated with age. 20 Given the potential significance of the evidence underlying Hogarth’s unexhausted claims, the 21 Court finds that counsel’s failure to develop or pursue the legal and/or factual basis for the 22 claims to be arguably ineffective. The Court further finds that the unexhausted grounds are not 23 “plainly meritless,” and that Hogarth has not engaged in intentionally dilatory litigation tactics. 24 Because Hogarth has satisfied Rhines as to at least one claim, this habeas action will be stayed 25 and held in abeyance until he has presented his claims to the Nevada courts. 26 // 27 // 28 // ] Il. Conclusion 2 IT IS THEREFORE ORDERED that Petitioner’s unopposed Motion to Stay Case 3 || CECF No. 48) is GRANTED. 4 It is further ordered that this action is STAYED pending exhaustion of the unexhausted 5 || claims. 6 It is further ordered that the stay is conditioned upon Hogarth litigating his state petition 7 || or other appropriate proceeding in state court and returning to federal court with a motion to 8 || reopen within 45 days of issuance of the remittitur by the Supreme Court of Nevada or Nevada 9 || Court of Appeals at the conclusion of the state court proceedings. ! 10 It is further ordered that the Clerk of Court is directed to ADMINISTRATIVELY 11 |} CLOSE this action, until such time as this Court grants a motion to reopen the matter. 12 DATED: 04/09/2024 14 KENT I. DAWSON, 15 UNITED STATES DISTRICT JUDGE — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — a ' If certiorari review will be sought or thereafter is being sought, either party may move to extend the stay 28 || for the duration of such proceedings. Cf Lawrence v. Florida, 549 U.S. 327, 335 (2007).