Guy v. Baker

Filing 63

ORDER Granting 56 Motion to Stay and Abey Federal Action. Denying as moot 41 Motion to Dismiss. Status Reports due by 12/15/2013, 6/15/2014, and 12/15/2014. Signed by Judge Andrew P. Gordon on 7/22/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CURTIS GUY,

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Petitioner,

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vs.

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RENEE BAKER, et al.,

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Respondents.

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2:11-cv-1809-APG-NJK
ORDER

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In this capital habeas corpus action, there is, before the court, a “Motion to Stay and Abey

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Federal Action” (ECF No. 56) filed by the petitioner, Curtis Guy. The court will grant that motion,

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and stay this action pending the conclusion of Guy’s ongoing state-court habeas corpus proceedings.

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Guy’s federal habeas corpus action is brought pursuant to 28 U.S.C. § 2254. His conviction,

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of first degree murder with the use of a deadly weapon, and his death sentence, result from events

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that occurred in North Las Vegas on April 7, 1990. See Guy v. State of Nevada, 108 Nev. 770, 773,

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839 P.2d 578, 580 (1992) (statement of facts in the Nevada Supreme Court’s decision on Guy’s

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direct appeal).

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Since his conviction, Guy has pursued a direct appeal to the Nevada Supreme Court and

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post-conviction litigation in state court. As a result of the state-court litigation, Guy has twice had

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new sentencing proceedings, with the last sentencing resulting in re-imposition of the death penalty.

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Most recently, Guy filed a second state-court habeas petition on May 16, 2012, and that action

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remains pending in the state district court. See Motion to Stay and Abey Federal Action (ECF

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No. 56), p. 4.

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Guy initiated this federal habeas corpus action, pro se, on November 9, 2011, and counsel

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was appointed for him (ECF Nos. 1, 5, 10). With counsel, Guy filed an amended habeas petition

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(ECF No. 17) on May 16, 2012 (the same day he initiated his second state-court habeas action).

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On May 25, 2012, respondents filed a “Motion for Compliance with Scheduling Order”

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(ECF No. 20), arguing that Guy did not, in the amended petition, provide adequate information

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regarding the exhaustion of his claims in state court.

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On June 8, 2012, Guy’s counsel, then the Federal Public Defender for the District of

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Nevada, filed, under seal, a motion to withdraw (ECF No. 21). The court granted that motion on

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July 10, 2012, discharged the Federal Public Defender for the District of Nevada, and appointed the

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Federal Public Defender for the Central District of California to represent Guy (ECF Nos. 27, 31).

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On November 16, 2012, the court denied respondents’ Motion for Compliance with

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Scheduling Order, and ordered respondents to further respond to the amended habeas petition

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(ECF No. 39).

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On January 15, 2013, respondents filed a motion to dismiss (ECF No. 41). In the motion to

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dismiss, respondents assert that several of the claims in Guy’s amended petition are unexhausted in

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state court, that certain of his claims are procedurally defaulted, and that one of his claims fails to

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state a claim upon which relief may be granted.

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On March 13, 2013, Guy filed the motion for stay (ECF No. 56) that is now before the court.

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The court then set a briefing schedule with regard to the motion for stay, and ordered briefing of the

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motion to dismiss suspended pending resolution of the motion for stay (ECF No. 58). Respondents

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filed an opposition to the motion for stay on April 3, 2013 (ECF No. 59), and Guy replied on

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April 23, 2013 (ECF No. 60).

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In the motion for stay, Guy requests that the court stay this case pending exhaustion of his

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unexhausted claims in state court in his ongoing second state-court habeas action. See Motion to

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Stay and Abey Federal Action, pp. 1-3.

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A federal court may not grant habeas corpus relief on a claim not exhausted in state court.

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28 U.S.C. § 2254(b). The exhaustion doctrine is based on the policy of federal-state comity, and is

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intended to allow state courts the initial opportunity to correct constitutional deprivations. See

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Picard v. Conner, 404 U.S. 270, 275 (1971). To exhaust a claim, a petitioner must fairly present the

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claim to the highest state court, and must give that court the opportunity to address and resolve it.

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See Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Keeney v. Tamayo-Reyes, 504 U.S. 1,

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The amended petition in this action is a “mixed petition,” meaning it contains both exhausted

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and unexhausted claims. See Amended Petition for Writ of Habeas Corpus (ECF No. 17), p. 9, ¶7

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(conceding that certain claims in the amended petition are unexhausted); see also Motion to Dismiss

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(ECF No. 41), pp. 6-20 (contending that several claims in the amended petition are unexhausted).

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If Guy’s mixed amended petition were simply dismissed without prejudice, Guy might face

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limitations issues when he later attempts to file a new federal petition after completing the

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exhaustion of his claims in state court. See 28 U.S.C. § 2244(d) (statute of limitations); Duncan v.

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Walker, 533 U.S. 167 (2001) (pendency of federal habeas petition does not toll limitations period);

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Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (regarding “protective petitions”).

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In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court circumscribed

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the discretion of federal district courts to impose stays to facilitate habeas petitioners’ exhaustion of

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claims in state court. The Rhines Court stated:

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[S]tay and abeyance should be available only in limited circumstances. Because
granting a stay effectively excuses a petitioner’s failure to present his claims first to
the state courts, stay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to exhaust his claims first
in state court. Moreover, even if a petitioner had good cause for that failure, the
district court would abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application

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for a writ of habeas corpus may be denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available in the courts of the State”).

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[I]t likely would be an abuse of discretion for a district court to deny a stay and to
dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics. In such circumstances,
the district court should stay, rather than dismiss, the mixed petition.

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Rhines, 544 U.S. at 277-78.
Rhines does not state, or suggest, that every unexhausted claim in the petition must satisfy,
individually, the “good cause” and “potentially meritorious” requirements before a stay is permitted.

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If a stay is warranted with respect to any single claim, the court need not conduct a claim-by-claim

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analysis regarding the remaining claims.

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In Claim 3 of Guy’s amended petition, he asserts that his death sentence is in violation of the

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constitution because his trial counsel was ineffective in the pretrial, trial, and penalty phases of his

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case. Amended Petition for Writ of Habeas Corpus (ECF No. 17), p. 19. Claim 3 includes several

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subclaims, and Guy concedes that “at least five subclaims” are based on previously unexhausted

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facts. Motion to Stay and Abey Federal Action, p. 11.

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In his motion for stay, Guy asserts that his counsel in his first state-court habeas action was

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also ineffective, in that she “failed to not only investigate the claims that she did bring, such as

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ineffective assistance of trial counsel and direct appeal counsel, but also failed to raise meritorious

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claims of ineffective assistance of counsel regarding mental health and mitigation evidence,

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prosecutorial misconduct and jury bias.” Id. at 10. Guy asserts further: “Because of post-

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conviction counsel’s failure to investigate, discover, and present these claims and their supporting

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evidence, these claims and facts have been raised for the first time in the 2012 state habeas petition.”

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Id. Guy claims that the failures of post-conviction counsel were “due to, inter alia, a break down in

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her relationship with her investigative staff; her failure to timely process investigative staff’s

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payment requests; her dilatory actions and neglect of her obligations to her client; her frequently

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citing to illness to excuse failures to timely file numerous briefs in numerous cases; her disregard of

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her duty to serve her client; and/or breach of loyalty to him.” Id. at 10-11. Guy continues:

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“Regardless of the reasons why, the failure to develop and present such claims and evidence is the

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result of ineffective assistance of Mr. Guy’s state post-conviction counsel.” Id. at 11. Guy argues,

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therefore, that the alleged ineffectiveness of his counsel in his first state-court habeas action

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constitutes good cause for his failure to exhaust parts of the claim that is Claim 3 of his amended

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petition, as well as other claims in his amended petition.

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In Martinez v. Ryan, 132 S.Ct. 1309 (2012), the Supreme Court held that “[w]here, under

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state law, claims of ineffective assistance of trial counsel must be raised in an initial-review

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collateral proceeding, a procedural default will not bar a federal habeas court from hearing a

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substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there

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was no counsel or counsel in that proceeding was ineffective.” Martinez, 132 S.Ct. at 1320. While

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the Martinez decision did not deal directly with the issue of good cause for a failure to exhaust, its

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holding, with respect to the issue of good cause for a procedural default, concerns a similar issue,

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and is analogous and instructive.

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The Rhines opinion does not describe in detail what constitutes good cause for failure to

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exhaust, and the Ninth Circuit has provided no clear guidance on that question, beyond holding that

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the test is less stringent than an “extraordinary circumstances” standard. See Jackson v. Roe, 425

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F.3d 654, 661-62 (9th Cir. 2005) (citing NLRB v. Zeno Table Co., 610 F.2d 567, 569 (9th Cir.

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1979)). Many district courts have concluded that the standard is more generous than the good-cause

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showing needed to excuse a procedural default. See, e.g., Rhines v. Weber, 408 F.Supp.2d 844, 849

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(D.S.D. 2005) (applying the Supreme Court’s mandate on remand). This view finds support in the

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Supreme Court’s opinion in Pace v. DiGuglielmo, 544 U.S. 408 (2005), where the Court

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acknowledged that a petitioner’s “reasonable confusion” about the timeliness of his federal petition

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would generally constitute good cause for his failure to exhaust state remedies before filing his

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federal petition. Pace, 544 U.S. at 416-17. In light of this precedent, and especially in light of

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Martinez, the court concludes that ineffective assistance of counsel in initial-review collateral

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proceedings, in failing to raise a substantial claim of ineffective assistance of counsel at trial, may

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establish cause for the failure to exhaust that claim.

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Applying this principle in this case, the court notes that in Nevada a claim of ineffective

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assistance of trial counsel generally must be made, in the first instance, in a first state habeas action.

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See Corbin v. State, 111 Nev. 378, 381, 892 P.2d 580, 582 (1995) (“[T]his court has consistently

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concluded that it will not entertain claims of ineffective assistance of counsel on direct appeal.”).

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Further, the court agrees with Guy that, in light of Martinez, and the other caselaw cited above, he

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has shown good cause under Rhines for his failure to exhaust all the facts alleged in support of the

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substantial ineffective assistance of counsel claims set forth in Claim 3 of his amended petition.

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The court finds that Claim 3 is at least potentially meritorious. And, there is no indication that Guy

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has ever engaged in intentionally dilatory litigation tactics. Therefore, the requirements for a stay of

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this action pending exhaustion of Guy’s claims in state court, as set forth in Rhines, are satisfied.

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The court will grant Guy’s motion for stay and abeyance, and stay this action. In exercising

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its discretion to grant the stay, the court takes into account the effect of Crump v. Warden, 113 Nev.

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292, 934 P.2d 247 (1997), under which, it appears, there is at least a possibility that the Nevada

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courts may consider, on their merits, Guy’s unexhausted claims, including the unexhausted claims

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set forth in Claim 3 of his amended petition.

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The court’s intention is that this will be the last time that the court imposes a stay to facilitate

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Guy’s exhaustion of claims in state court. Guy must exhaust all of his unexhausted claims in state

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court during the stay imposed pursuant to this order.

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The stay of this action, while Guy completes his second state-court habeas action, renders

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moot much of the argument for dismissal in respondents’ motion to dismiss; the court will,

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therefore, deny the motion to dismiss as moot, without prejudice to the respondents raising any of

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the same arguments for dismissal again, at an appropriate time, after the stay is lifted.

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IT IS THEREFORE ORDERED that petitioner’s Motion to Stay and Abey Federal Action

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(ECF No. 56) is GRANTED. This action is STAYED to allow petitioner to exhaust, in state court,

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all his unexhausted claims for habeas corpus relief.

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IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 41) is
DENIED, as moot.
IT IS FURTHER ORDERED that, on or before December 15, 2013, petitioner shall file

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and serve a status report, describing the status of his state-court proceedings. Thereafter, during

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the stay of this action, petitioner shall file such a status report every 6 months (on or before

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June 15, 2014; December 15, 2014; etc.). Respondents may, if necessary, file and serve a response

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to any such status report within 15 days after its service. If necessary, petitioner may reply within

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15 days of service of the response.

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IT IS FURTHER ORDERED that, following the conclusion of petitioner’s state court
proceedings, petitioner shall, within 30 days, make a motion to lift the stay.
IT IS FURTHER ORDERED that this action shall be subject to dismissal upon a motion

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by respondents if petitioner does not comply with the time limits in this order, or if he otherwise

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fails to proceed with diligence during the stay imposed pursuant to this order.

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Dated this 22nd day of July 2013.

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_________________________________________
UNITED STATES DISTRICT JUDGE

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