WILLIAM LEONARD V. E.K.MCDANIEL
Filing
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ORDER denying ECF No. 130 Motion for reconsideration; granting ECF No. 132 Motion for Extension of Time to file first amended petition; amended petition due by 1/15/2018. Signed by Judge Miranda M. Du on 10/26/2017. (Copies have been distributed pursuant to the NEF - KW)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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WILLIAM BRYON LEONARD,
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Case No. 2:99-cv-0360-MMD-CWH
Petitioner,
v.
ORDER
TIMOTHY FILSON, et al.,
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Respondents.
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On August 18, 2017, this Court entered an order that granted petitioner Leonard’s
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motion to supplement his habeas petition with a claim based on Hurst v. Florida, 136 S.Ct.
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616 (2016), but denied his motion to stay these proceedings pending his state court
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exhaustion of that claim. (ECF No. 129.) On August 23, 2017, he filed a motion asking
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this Court to reconsider its denial of the motion to stay. (ECF No. 130.)
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In arguing for reconsideration, Leonard disputes this Court’s conclusion that a stay
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is not warranted under Rhines v. Weber, 544 U.S. 269 (2005), because his Hurst claim
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is not potentially meritorious.1 More specifically, he claims this Court presented “no
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explanation for the reversal of its previous position that the Rhines factors were satisfied
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and that stays of proceedings were warranted under Rhines to permit exhaustion of a
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claim based on Hurst.” (ECF No. 130 at 4.) He fails to identify, however, a single instance
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Court in Rhines held that, in order to obtain “stay and abeyance,” a petitioner
must show: 1) good cause for the failure to exhaust claims in state court; 2) that
unexhausted claims are potentially meritorious; and 3) the absence of abusive tactics or
intentional delay. Rhines, 544 U.S. at 276.
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in which this Court specifically took such a position. That is, this Court has yet to conclude
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that a petitioner can satisfy all the Rhines factors with respect to a Hurst claim.
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Leonard also cites to two Ninth Circuit cases in which the court of appeals stayed
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appellate proceedings to allow the petitioner to present Hurst claims in state court. In both
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of those cases, however, the Ninth Circuit merely issued a one-paragraph order without
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stating any rationale for its decision. See Order [Granting Stay], Sherman v. Filson, No.
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16-99000 (filed April 18, 2017), Docket Number 18; Order [Granting Stay], Bejarano v.
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Filson, No. 11-99000 (filed April 18, 2017), Docket Number 83. Moreover, the Ninth Circuit
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has issued a reported decision subsequent to those orders in which it noted that it was
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“highly skeptical” of the merits of a Nevada petitioner’s Hurst claims and held that, in any
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case, the petitioner could not obtain relief under Hurst because Hurst does not apply
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retroactively. Ybarra v. Filson, 869 F.3d 1016, 1030-33 (9th Cir. 2017).
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In this Court’s view, the “potentially meritorious” standard approximates the
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standard that applies when a court decides whether to deny an unexhausted claim under
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28 U.S.C. § 2254(b)(2). See Rhines, 544 U.S. at 277. In both instances, the objective is
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to preserve the principle of comity while preventing the waste of state and federal
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resources that occurs when a petitioner is sent back to state court to litigate a clearly
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hopeless claim. Cf. Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.2005). In moving for
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reconsideration, Leonard offers no substantive argument as to why this Court’s legal
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analysis of his Hurst claim in its previous order was erroneous. Accordingly, the Court
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stands by its conclusion that Leonard’s Hurst claim does not meet the standard.
It is therefore ordered that petitioner’s motion for reconsideration (ECF No. 130) is
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denied.
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It is further ordered that petitioner’s motion for extension of time to file first
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amended petition (ECF No. 132) is granted. Petitioner will have until January 15, 2018,
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to file his first amended petition. In all other respects, the scheduling order of December
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28, 2016 (ECF No. 120), will govern future proceedings in this case.
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DATED THIS 26th day of October 2017.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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