WILLIAM LEONARD V. E.K.MCDANIEL

Filing 173

ORDER that Petitioner's motion (ECF No. 169 ) is denied; the scheduling order of December 28, 2016 (ECF No. 120 ) continues to govern proceedings in this case. Signed by Judge Miranda M. Du on 5/14/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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WILLIAM BRYON LEONARD,

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Petitioner,
v.

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Case No. 2:99-cv-0360-MMD-CWH
ORDER

WILLIAM GITTERE,1 et al.,

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Respondents.

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I.

SUMMARY

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On March 27, 2019, Petitioner filed a motion for stay and abeyance asking the

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Court to suspend these federal proceedings while he once again pursues state court relief

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from his conviction and death sentence. (ECF No. 169.) For the reasons that follow, the

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motion will be denied.

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II.

BACKGROUND

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Nearly two and a half years ago, this Court reopened these proceedings after a

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ten-year exhaustion stay. At that time, the Court entered a scheduling order that allowed

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Petitioner 60 days within which to file an amended petition. (ECF No. 120.) Within that

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60-day period, Petitioner filed, in succession, a motion for leave to supplement his petition

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for writ of habeas corpus (ECF No. 121), a motion to re-impose the stay (ECF No. 124),

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and a motion for extension of time to file a first amended petition pending resolution of his

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motion to re-impose the stay (ECF No. 127).

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the current warden at Ely State Prison, William Gittere is automatically
substituted as a respondent for former warden, Timothy Filson. See Fed. R. Civ. P. 25(d).

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When the Court denied Petitioner’s motion to re-impose the stay (ECF No. 129),

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Petitioner filed a motion for reconsideration (ECF No. 130) that further delayed the filing

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of his first amended petition. And, from the time the motion for reconsideration was

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denied, nearly five months passed before Petitioner filed his 400-page amended petition.

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After receiving four extensions of time, Respondents filed a motion to dismiss the

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petition, advancing various procedural defenses including failure to exhaust. Petitioner

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then filed the motion for stay and abeyance currently before the Court for decision.

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III.

LEGAL STANDARDS

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In Rhines v. Weber, 544 U.S. 269 (2005), the stay and abeyance procedure was

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condoned by the Court as a means by which a habeas petitioner with a mixed petition

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subject to dismissal under Rose v. Lundy, 455 U.S. 509 (1982), could fully exhaust his

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petition without the risk of running afoul of the 1-year statutory time limit for filing federal

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petitions. See Rhines, 544 U.S. at 276. The Court in Rhines cautioned, however, that stay

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and abeyance, if too frequently used, would undermine AEDPA’s goals of prompt

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resolution of claims and deference to state court rulings. See id. Thus, the Court held that,

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in order to obtain “stay and abeyance,” a petitioner must show: 1) good cause for the

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failure to exhaust claims in state court; 2) that unexhausted claims are potentially

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meritorious; and 3) the absence of abusive tactics or intentional delay. See id.; see also

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Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005).

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IV.

DISCUSSION

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With his motion for stay and abeyance, Petitioner asks the Court to stay further

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proceedings in this case until he completes state court litigation of an amended petition

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for writ of habeas corpus he filed in the state district court on June 9, 2017. According to

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Petitioner, the amended state petition includes a claim of ineffective assistance of counsel

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supported by “newly discovered evidence,” which consists of “a declaration from trial

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counsel [James Wessel] acknowledging the harm his gambling addiction caused to

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[Petitioner].” (ECF No. 169 at 3.)

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This Court sees several problems with Petitioner’s request for a stay. First, the

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allegation that trial counsel’s gambling problem negatively impacted his performance

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while representing the Petitioner is not new. Indeed, the initial petition filed in this case in

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1999 alleged that, while he “was preparing and conducting Petitioner’s defense, lead

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counsel was trying to deal with unfolding consequences of his own criminal conduct

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stemming from a gambling addition” which involved “the embezzlement of $150,000 of

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another client’s funds, which was discovered several months prior to Petitioner’s capital

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murder trial” and shortly after the trial “resulted in lead counsel’s conviction of three

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felony counts of embezzlement, incarceration and disbarment.” (ECF No. 3 at 7-8

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(emphasis in original).) See also DePasquale v. McDaniel, Case No. 3:07-cv-00472-ECR,

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2011 WL 841419, at *7 (D. Nev. Mar. 7, 2011) (referencing “Wessel’s gambling problem,

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financial problems, and actions which resulted in Wessel's eventual disbarment and

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conviction for the crime of embezzlement”).

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As noted, a Rhines stay permits a petitioner to present unexhausted claims to the

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state court while his federal petition remains pending, thereby allowing him to avoid the

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risk of later returning to federal court with a time-barred petition. Here, Petitioner does not

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identify a particular unexhausted claim he intends to exhaust during his requested stay.

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It appears only that he wishes to supplement long-standing ineffective assistance of

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counsel claims with additional evidence; i.e., an acknowledgment from Wessel himself

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regarding the harmful impact of his gambling problem. That is not the purpose of a Rhines

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stay.

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On the other hand, if Petitioner is, in fact, presenting an unexhausted claim in his

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recently filed state petition, he has not established good cause for failing to exhaust the

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claim. Evidence of trial counsel’s gambling, financial, and legal woes has been readily

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available for most, if not all, of the 30 years since Petitioner’s conviction. Wessel’s belated

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acknowledgment that his gambling problem undermined his performance was not a

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prerequisite for bringing a claim challenging his performance nor does the

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acknowledgment give rise to a new claim. As Respondents note, Strickland v.

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Washington presents an objective standard for reviewing trial counsel’s performance. See

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466 U.S. 668, 688 (1984). Wessel’s declaration may shed light on the underlying cause

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of his alleged errors or omissions, but it does not significantly impact the question whether

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his performance fell below the Strickland standard.

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Petitioner’s motion for stay and abeyance does not satisfy the requirements
established in Rhines.

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It is therefore ordered that Petitioner’s motion (ECF No. 169) is denied.

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It is further ordered that the scheduling order of December 28, 2016 (ECF No. 120)

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continues to govern proceedings in this case.
DATED THIS 14th day of May 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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