Combs v. State of Nevada et al

Filing 27

ORDER Granting 15 Motion to Amend Petition. FURTHER ORDERED that 17 Motion for More Definite Statement is DENIED. FURTHER ORDERED that petitioner shall have 30 days to inform the court how he wishes to proceed. (See Order for details). FURTHER ORDERED that if petitioner fails to respond to this order within the time permitted, this case may be dismissed. Signed by Judge Philip M. Pro on 5/3/12. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
DISTRICT OF NEVADA
11
12
13
14
15
16
17

BRETT COMBS,

)
)
Petitioner,
)
)
vs.
)
)
STATE OF NEVADA, et al.,
)
)
Respondents.
)
____________________________________/

2:11-cv-00528-PMP-VCF
ORDER

18
19

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

20

state prisoner, is proceeding pro se. Before the court are petitioner’s motion to amend the petition (ECF

21

No. 15) and respondents’ motion for a more definite statement (ECF No. 17).

22

First, under 28 U.S.C. § 2254 Rule 11, the Federal Rules of Civil Procedure are applicable to

23

habeas petitions to the extent they are not inconsistent with the Habeas Rules. Morrison v. Mahoney,

24

399 F.3d 1042, 1046 n. 5 (9th Cir. 2005). Petitioner may amend his petition once as a matter of course

25

as provided by Fed. R. Civ. P. 15(a). In this case, petitioner moved to amend his petition within 21 days

26

of service of the petition and before respondents filed a responsive pleading. Accordingly, the court

1

grants the motion for leave to file an amended petition. The amended petition filed October 24, 2011

2

(ECF No. 23) is the current operative petition in this action. In their reply to their motion for a more

3

definite statement, respondents concede that the amended petition is sufficient to enable a response.

4

(ECF No. 24.) Thus, the court denies respondents’ motion for a more definite statement.

5

Second, in their motion for a more definite statement and reply, respondents advise the court of

6

petitioner’s pending state-court proceedings with respect to petitioner’s state post-conviction petition

7

challenging the conviction at issue in this case. In ground one of his federal amended petition, petitioner

8

asserts a claim concerning the ineffective assistance of his counsel. Generally, in the Nevada state

9

courts, a claim regarding the ineffective assistance of counsel must be raised in a post-conviction petition

10

rather than on direct appeal. See Archanian v. State, 122 Nev. 1019, 1036, 145 P.3d 1008, 1020-21

11

(2006) (“This court has repeatedly declined to consider ineffective-assistance-of-counsel claims on direct

12

appeal unless the district court has held an evidentiary hearing on the matter or an evidentiary hearing

13

would be needless.”). A petitioner must first present his grounds for relief to a state court before a

14

federal court may review the merits of the issues he raises. To exhaust a claim, petitioner must have

15

“fairly presented” that specific claim to the Supreme Court of Nevada. See Picard v. Conner, 404

16

U.S. 270,275-76 (1971); Schwartzmiller v. Gardner, 752 F.2d 1341, 1344 (9th Cir. 1984). Here, it does

17

not appear that petitioner’s claim of ineffective assistance of counsel was exhausted on direct appeal.

18

Thus, it appears that ground one of petitioner’s federal petition is not exhausted at this time because his

19

post-conviction petition remains pending in state court.

20

In their reply, respondents suggest that the court treat the amended petition as a “protective

21

petition” and stay this case until state-court proceedings are concluded. The court will allow petitioner

22

an opportunity to address this issue before proceeding. Because at least one ground of the amended

23

petition appears to be unexhausted, the petition is a “mixed petition.” A federal court may not entertain

24

a habeas petition unless the petitioner has exhausted available and adequate state court remedies with

25

respect to all claims in the petition. Rose v. Lundy, 455 U.S. 509, 510 (1982). Because it appears to the

26

2

1

court that the petition is a “mixed petition,” containing both exhausted and unexhausted claims,

2

petitioner has these options:

3

1.

He may submit a sworn declaration voluntarily abandoning the unexhausted
claims in his federal habeas petition, and proceed only on the exhausted claims;

2.

He may return to state court to exhaust his unexhausted claims, in which case his
federal habeas petition will be denied without prejudice; or

3.

He may file a motion asking this court to stay and abey his exhausted federal
habeas claims while he returns to state court to exhaust his unexhausted claims.

4
5
6
7
See Rose v. Lundy, 455 U.S. 509, 510 (1982); Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315
8
F.3d 1063 (9th Cir. 2002); King v. Ryan, 564 F.3d 1133 (9th Cir. 2009).
9
With respect to the third option enumerated above, in Rhines v. Weber, 544 U.S. 269 (2005), the
10
United States Supreme Court held that a federal district court may stay a mixed petition—a petition
11
containing both exhausted and unexhausted claims —in “limited circumstances,” so that a petitioner may
12
present his unexhausted claims to the state courts without losing his right to federal habeas review due
13
to the one-year statute of limitations. Rhines, 544 U.S. at 273-75. Under Rhines, a district court may
14
stay a mixed petition only if: (1) the petitioner has “good cause” for his failure to exhaust his claims in
15
state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the
16
petitioner intentionally engaged in dilatory litigation tactics. Id. at 278; Wooten v. Kirkland, 540 F.3d
17
1019, 1023 (9th Cir. 2008).
18
Because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) aims to
19
encourage the finality of state court judgments and to encourage petitioners to seek relief from state
20
courts in the first instance, a stay and abeyance is only available in “limited circumstances.” Rhines, 544
21
U.S. at 276-77. Although the precise contours of “good cause” under Rhines have yet to be delineated,
22
the Ninth Circuit Court of Appeals has held that the application of an “extraordinary circumstances”
23
standard does not comport with the “good cause” standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th
24
Cir. 2005). On the other hand, the “good cause” requirement should not be interpreted in a manner that
25
26

3

1

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

2

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

3

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

4

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

5

petitioner’s “reasonable confusion about whether a state filing would be timely will ordinarily constitute

6

‘good cause’ for him to file [a protective petition] in federal court.” Pace v. DiGuglielmo, 544 U.S. 408,

7

416 (2005).

8

Petitioner’s failure to choose any of the three options listed above, or seek other appropriate relief

9

from this court, will result in his federal habeas petition being dismissed. Petitioner is advised to

10

familiarize himself with the limitations periods for filing federal habeas petitions contained in 28 U.S.C.

11

§ 2244(d), as those limitations periods may have a direct and substantial effect on whatever choice he

12

makes regarding his petition.

13
14
15
16

IT IS THEREFORE ORDERED that petitioner’s motion to amend the petition (ECF No. 15)
is GRANTED.
IT IS FURTHER ORDERED that respondents’ motion for a more definite statement (ECF No.
17) is DENIED.

17

IT IS FURTHER ORDERED that petitioner shall have thirty (30) days to either: (1) inform

18

this court in a sworn declaration that he wishes to formally and forever abandon the unexhausted grounds

19

for relief in his federal habeas petition and proceed on the exhausted grounds; OR (2) inform this court

20

in a sworn declaration that he wishes to dismiss this petition without prejudice in order to return to state

21

court to exhaust his unexhausted claims; OR (3) file a motion for a stay and abeyance, asking this court

22

to hold his exhausted claims in abeyance while he returns to state court to exhaust his unexhausted

23

claims. If petitioner chooses to file a motion for a stay and abeyance, or seek other appropriate relief,

24

respondents may respond to such motion as provided in Local Rule 7-2.

25
26
4

1
2

IT IS FURTHER ORDERED that if petitioner fails to respond to this order within the time
permitted, this case may be dismissed.

3
4

3rd day of May, 2012.
Dated this ______ day of May, 2012.

5
6
UNITED STATES DISTRICT JUDGE
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5