Archie v. Foster et al
Filing
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ORDER Granting 13 Motion to Stay pending conclusion of proceedings in state court. Clerk shall administratively close this action. Signed by Judge Roger L. Hunt on 12/7/11. (Copies have been distributed pursuant to the NEF - ASB)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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MYRDUS ARCHIE,
aka Mary Smith,
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Petitioner,
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vs.
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SHERYL FOSTER, et al.,
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Respondents.
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2:10-cv-01968-RLH-RJJ
ORDER
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This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a
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state prisoner, is proceeding with the representation of counsel. On June 15, 2011, the court issued an
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order requiring petitioner’s counsel to show cause why he should not be sanctioned for failing for file
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an amended petition as ordered by the court. (ECF No. 12.) The court also ordered petitioner to file an
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amended petition. (Id.)
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With respect to the order to show cause, petitioner’s counsel indicates that his failure to file an
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amended petition resulted from a calendaring error, but that he has taken steps to ensure such an error
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does not occur in the future. (ECF No. 14.) Accordingly, the court concludes that under the
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circumstances, sanctions are not warranted.
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Petitioner moves the court to stay this case because of proceedings pending in state court. (ECF
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No. 13.) Respondents take no position on the motion. (ECF No. 15.) In Pace v. DiGuglielmo, 544 U.S.
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408, 416-417 (2005), the United States Supreme Court acknowledged that a petitioner’s “reasonable
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confusion” about the timeliness of his or her federal petition would generally constitute good cause
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under Rhines v. Weber, 544 U.S. 269 (2005), for his or her failure to exhaust state remedies before filing
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a federal petition. In this case, when petitioner moved for the appointment of counsel, she stated that
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she intended to raise ineffective-assistance-of-counsel claims but that due to the complex nature of her
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case, she was unable to understand or formulate such claims. (ECF No. 7.) The court concludes that
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petitioner’s reasonable confusion concerning the timeliness and formulation of claims regarding the
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effectiveness of her counsel, combined with the complex nature of her case and likely prejudice to her
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if the case is dismissed, supports a finding of good cause for a stay. Moreover, ineffective assistance
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of counsel is a cognizable basis for habeas relief and no evidence exists that petitioner seeks a stay for
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an improper purpose. See Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993) (holding that a
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stay for the purpose of permitting exhaustion of unexhausted claims should be granted only if the claims
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petitioner seeks to pursue are cognizable under § 2254; there is a likelihood of prejudice to petitioner
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if the stay is not granted; and there is no evidence that the motion for a stay is brought to delay, vex, or
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harass, or that the request is an abuse of the writ). Accordingly, the court grants petitioner’s request for
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a stay.
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IT IS THEREFORE ORDERED that petitioner’s motion to stay (ECF No. 13) is GRANTED.
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IT IS FURTHER ORDERED that this action is STAYED pending the conclusion of
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proceedings in state court. Petitioner may move to reopen the matter after state court proceedings have
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concluded.
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IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner returning
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to federal court with a motion to reopen within forty-five (45) days of issuance of the remittitur by the
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Supreme Court of Nevada at the conclusion of the state court proceedings.
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IT IS FURTHER ORDERED that the clerk shall ADMINISTRATIVELY CLOSE this
action, until such time as the court grants a motion to reopen the matter.
Dated this
7th
day of December, 2011.
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________________________________
UNITED STATES DISTRICT JUDGE
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