WILLIAM LEONARD V. E.K.MCDANIEL

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)

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