Filing 133

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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 WILLIAM BRYON LEONARD, 10 11 12 Case No. 2:99-cv-0360-MMD-CWH Petitioner, v. ORDER TIMOTHY FILSON, et al., 13 Respondents. 14 15 On August 18, 2017, this Court entered an order that granted petitioner Leonard’s 16 motion to supplement his habeas petition with a claim based on Hurst v. Florida, 136 S.Ct. 17 616 (2016), but denied his motion to stay these proceedings pending his state court 18 exhaustion of that claim. (ECF No. 129.) On August 23, 2017, he filed a motion asking 19 this Court to reconsider its denial of the motion to stay. (ECF No. 130.) 20 In arguing for reconsideration, Leonard disputes this Court’s conclusion that a stay 21 is not warranted under Rhines v. Weber, 544 U.S. 269 (2005), because his Hurst claim 22 is not potentially meritorious.1 More specifically, he claims this Court presented “no 23 explanation for the reversal of its previous position that the Rhines factors were satisfied 24 and that stays of proceedings were warranted under Rhines to permit exhaustion of a 25 claim based on Hurst.” (ECF No. 130 at 4.) He fails to identify, however, a single instance 26 27 28 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. 1The 1 in which this Court specifically took such a position. That is, this Court has yet to conclude 2 that a petitioner can satisfy all the Rhines factors with respect to a Hurst claim. 3 Leonard also cites to two Ninth Circuit cases in which the court of appeals stayed 4 appellate proceedings to allow the petitioner to present Hurst claims in state court. In both 5 of those cases, however, the Ninth Circuit merely issued a one-paragraph order without 6 stating any rationale for its decision. See Order [Granting Stay], Sherman v. Filson, No. 7 16-99000 (filed April 18, 2017), Docket Number 18; Order [Granting Stay], Bejarano v. 8 Filson, No. 11-99000 (filed April 18, 2017), Docket Number 83. Moreover, the Ninth Circuit 9 has issued a reported decision subsequent to those orders in which it noted that it was 10 “highly skeptical” of the merits of a Nevada petitioner’s Hurst claims and held that, in any 11 case, the petitioner could not obtain relief under Hurst because Hurst does not apply 12 retroactively. Ybarra v. Filson, 869 F.3d 1016, 1030-33 (9th Cir. 2017). 13 In this Court’s view, the “potentially meritorious” standard approximates the 14 standard that applies when a court decides whether to deny an unexhausted claim under 15 28 U.S.C. § 2254(b)(2). See Rhines, 544 U.S. at 277. In both instances, the objective is 16 to preserve the principle of comity while preventing the waste of state and federal 17 resources that occurs when a petitioner is sent back to state court to litigate a clearly 18 hopeless claim. Cf. Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.2005). In moving for 19 reconsideration, Leonard offers no substantive argument as to why this Court’s legal 20 analysis of his Hurst claim in its previous order was erroneous. Accordingly, the Court 21 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 22 23 denied. 24 It is further ordered that petitioner’s motion for extension of time to file first 25 amended petition (ECF No. 132) is granted. Petitioner will have until January 15, 2018, 26 /// 27 /// 28 /// 2 1 to file his first amended petition. In all other respects, the scheduling order of December 2 28, 2016 (ECF No. 120), will govern future proceedings in this case. 3 4 DATED THIS 26th day of October 2017. 5 6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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