Ruffa v. McDaniel et al

Filing 31

ORDER that petitioner shall have 30 days from the date of entry of this order within which to file a notice of abandonment of unexhausted claims, indicating that ground one and ground fourt are to be deleted from his petition. FURTHER ORDERED that, if petitioner does not abandon his unexhausted claims within the time allowed, the petition shall be dismissed. If petitioner abandons his unexhausted claims within the time allowed, respondents shall have 45 days from the date the notice of abandonm ent is filed within which to answer the remaining ground in the petition. Petitioner shall have 45 days after service of the answer to file and serve a reply. Signed by Judge Kent J. Dawson on 5/23/12. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
DISTRICT OF NEVADA
9
10
11

DAVID PHILLIP RUFFA,

12

Petitioner,

13

vs.

14

E. K. McDANIEL, et al.,

15

Respondents.

)
)
)
)
)
)
)
)
)
/

2:09-cv-02258-KJD-PAL
ORDER

16
17

This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a

18

state prisoner, is proceeding pro se. The court previously entered an order granting in part and denying

19

in part respondents’ motion to dismiss and denying petitioner’s motion for discovery. (ECF No. 26.)

20

The court found ground three to be procedurally defaulted. (Id.) The court also found grounds one and

21

four to be unexhausted. (Id.) In ground one, petitioner raises claims of ineffective assistance of counsel.

22

(Id.) In ground four, petitioner claims that he was deprived of his right to a speedy trial. (Id.) The court

23

gave petitioner various options as to how he could proceed in his case with regard to his unexhausted

24

claims, including granting him “an opportunity to show good cause for his failure to exhaust his

25

unexhausted claims in state court, and to present argument regarding the question whether or not his

26

unexhausted claims are plainly meritless.” (Id.)

1

Petitioner filed a response to the order to show cause. (ECF No. 27.) Respondents filed a

2

response to petitioner’s response (ECF No. 28), and petitioner replied (ECF No. 29). In the first section

3

of his response, petitioner presents a discussion of why he seeks discovery. This is irrelevant to the issue

4

petitioner was required to address in response to the court’s order to show cause, i.e., why he did not

5

exhaust grounds one and four before filing his petition in this court.

6

argument that he received ineffective assistance of counsel both at trial and on appeal. Again, this is

7

irrelevant. Exhaustion, not the merits of the claims, is what was to be addressed by petitioner in

8

response to the order to show cause.

Petitioner next presents an

9

In his response to the court’s order to show cause, petitioner presents one responsive argument.

10

He argues that any failure to raise claims on direct appeal is the fault of his appellate counsel and cannot

11

be attributed to him. Petitioner asserts that he attempted to have his appellate counsel removed and that

12

he attempted to file a motion on his own but that the clerk refused to file it because he was represented

13

by counsel.

14

In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court held that a federal

15

district court may stay a mixed petition—a petition containing both exhausted and unexhausted claims

16

—in “limited circumstances,” so that a petitioner may present his unexhausted claims to the state courts

17

without losing his right to federal habeas review due to the one-year statute of limitations. Rhines, 544

18

U.S. at 273-75. Under Rhines, a district court may stay a mixed petition only if: (1) the petitioner has

19

“good cause” for his failure to exhaust his claims in state court; (2) the unexhausted claims are

20

potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory

21

litigation tactics. Id. at 278; Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008).

22

Because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) aims to

23

encourage the finality of state court judgments and to encourage petitioners to seek relief from state

24

courts in the first instance, a stay and abeyance is only available in “limited circumstances.” Rhines, 544

25

U.S. at 276-77. Although the precise contours of “good cause” under Rhines have yet to be delineated,

26

the Ninth Circuit Court of Appeals has held that the application of an “extraordinary circumstances”

2

1

standard does not comport with the “good cause” standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th

2

Cir. 2005). On the other hand, the “good cause” requirement should not be interpreted in a manner that

3

renders stay orders routine. Wooten, 540 F.3d at 1024. Thus, a mere impression by a petitioner that a

4

claim was exhausted is not sufficient to establish good cause for a failure to exhaust, because if it were,

5

“virtually every habeas petitioner, at least those represented by counsel, could argue that he thought his

6

counsel had raised an unexhausted claim and secure a stay.” Id. (emphasis in original).

7
8

As discussed above, in ground one, petitioner raises claims of ineffective assistance of counsel.
In ground four, petitioner claims that he was deprived of his right to a speedy trial.

9

As to ground one, petitioner’s argument concerning the deficiency of appellate counsel is

10

insufficient to show good cause because, generally, in Nevada state courts, claims of ineffective

11

assistance of counsel are properly raised in a post-conviction petition and not on direct appeal. See

12

Archanian v. State, 122 Nev. 1019, 1036, 145 P.3d 1008, 1020-21 (2006) (“This court has repeatedly

13

declined to consider ineffective-assistance-of-counsel claims on direct appeal unless the district court

14

has held an evidentiary hearing on the matter or an evidentiary hearing would be needless.”). Thus, the

15

failure of petitioner’s counsel to raise claims of ineffective assistance of counsel on direct appeal does

16

not constitute “good cause” for petitioner’s failure to exhaust ground one.

17

Additionally, petitioner’s sparse argument is insufficient to show good cause for his failure to

18

exhaust ground four. Petitioner claims that if any issues were not raised on direct appeal, his counsel

19

bears the blame. In its order finding ground four unexhausted, this court concluded that the claim was

20

unexhausted because petitioner had failed to present the same factual basis for the claim to the state

21

courts that he now presents in his federal petition. Petitioner baldly states that he is not responsible for

22

his counsel’s mistakes and that any deficiency was the fault of counsel. Petitioner fails to provide

23

sufficient detail regarding his efforts to have the same factual basis of ground four raised on direct appeal

24

in state court. Within the procedural default context, allegations of external interference with a

25

petitioner’s ability to present a claim may support a finding of cause excusing procedural default.

26

Manning v. Foster, 224 F.3d 1129, 1135 (9th Cir. 2000) (holding that an attorney’s interference with a

3

1

petition due to a conflict of interest can support cause excusing a procedural default). In this case,

2

however, petitioner does not argue that counsel interfered with his ability to present the factual detail

3

he now presents in ground four. Rather, petitioner appears to generally argue that any deficiency at all

4

is the fault of counsel. Petitioner fails to tailor his argument with any specificity as to ground four, and

5

consequently, he fails to show good cause. Accordingly, the court concludes that petitioner has failed

6

to show good cause to support a stay of this case under Rhines v. Weber, 544 U.S. 269 (2005).

7

Because the petition in this case is a mixed petition—a petition containing both unexhausted and

8

exhausted claims—and the court has determined that a stay is not warranted, petitioner will be provided

9

with an opportunity to choose how he wishes to proceed.

10
11
12

Rhines contains a clear statement as to the treatment of a mixed petition when a stay is not
warranted:

16

. . . [I]f a petitioner presents a district court with a mixed petition and the
court determines that stay and abeyance is inappropriate, the court should
allow the petitioner to delete the unexhausted claims and to proceed with
the exhausted claims if dismissal of the entire petition would unreasonably
impair the petitioner's right to obtain federal relief. See [Rose v. Lundy,
455 U.S. 509, 520, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982), ] . . .
(plurality opinion) (“[A petitioner] can always amend the petition to delete
the unexhausted claims, rather than returning to state court to exhaust all
of his claims”).

17

Rhines, 544 U.S. at 278. Therefore, petitioner will be provided the opportunity to abandon his

18

unexhausted claims. If he does so, this case will proceed on his remaining exhausted claims. If he does

19

not abandon his unexhausted claims, his entire petition shall be dismissed under Rose v. Lundy, 455 U.S.

20

509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).

13
14
15

21

IT IS THEREFORE ORDERED that petitioner shall have thirty (30) days from the date of

22

entry of this order within which to file a notice of abandonment of unexhausted claims, indicating that

23

ground one and ground four are to be deleted from his petition.

24

IT IS FURTHER ORDERED that, if petitioner does not abandon his unexhausted claims

25

within the time allowed, the petition shall be dismissed under Rose v. Lundy, 455 U.S. 509, 102 S. Ct.

26

1198, 71 L. Ed. 2d 379 (1982).

4

1

IT IS FURTHER ORDERED that if petitioner abandons his unexhausted claims within the

2

time allowed, respondents shall have forty five (45) days from the date the notice of abandonment is

3

filed within which to answer the remaining ground in the petition.

4

IT IS FURTHER ORDERED that petitioner shall have forty five (45) days after service of the

5

answer to file and serve a reply.

6

DATED: May 23, 2012

7
8
UNITED STATES DISTRICT JUDGE
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

5