Willing v. Williams et al.

Filing 59

ORDER Granting Petitioner's 55 Motion for Stay and Abeyance. This action is STAYED pending final resolution of petitioner's pending state postconviction habeas petition. Petitioner's 54 Motion to Partially Waive Local Rule IA 10-3(e) is Granted. Petitioner's 47 Third Motion to Appoint Counsel is Denied. The Clerk shall administratively close this action until such time as the court grants a motion to reopen the matter. Signed by Judge Richard F. Boulware, II on 6/22/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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NICHOLAS JAMES WILLING,

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Case No. 2:14-cv-01194-RFB-CWH
Petitioner,

ORDER

v.
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BRIAN E. WILLIAMS, SR., et al.,
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Respondents.
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This action is a counseled petition for a writ of habeas corpus filed pursuant to 28

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U.S.C. § 2254, by Nevada state prisoner Nicholas James Willing. Willing has filed a

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motion for stay and abeyance of these federal proceedings in accordance with Rhines

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v. Weber to allow him to return to state court to exhaust certain grounds for relief (ECF

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No. 55).

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In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed limitations

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upon the discretion of the court to facilitate habeas petitioners’ return to state court to

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exhaust claims. 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 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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Rhines, 544 U.S. at 277.
The Court went on to state that, “[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.” Id. at 278.
Thus, the court may stay a petition containing both exhausted and unexhausted
claims if: (1) the habeas petitioner has good cause; (2) the unexhausted claims are
potentially meritorious; and (3) petitioner has not engaged in dilatory litigation tactics.
Rhines, 544 U.S. at 277; Gonzalez v. Wong, 667 F.3d 965, 977–80 (9th Cir. 2011).
“[G]ood cause turns on whether the petitioner can set forth a reasonable excuse,
supported by sufficient evidence, to justify [the failure to exhaust a claim in state court].”
Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “While a bald assertion cannot
amount to a showing of good cause, a reasonable excuse, supported by evidence to
justify a petitioner's failure to exhaust, will.” Id. An indication that the standard is not
particularly stringent can be found in Pace v. DiGuglielmo, 544 U.S. 408 (2005), where
the Supreme Court stated that: “[a] petitioner's reasonable confusion about whether a
state filing would be timely will ordinarily constitute ‘good cause’ to excuse his failure to
exhaust.” Pace, 544 U.S. at 416 (citing Rhines, 544 U.S. at 278). See also Jackson v.
Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (the application of an “extraordinary
circumstances” standard does not comport with the “good cause” standard prescribed
by Rhines).
Here, Willing seeks to return to state court to exhaust parts of three federal
grounds that relate to his allegations that the State suppressed favorable and material
evidence (ECF No. 55). Respondents have indicated that they do not oppose the
motion for stay (ECF No. 57). Respondents note that they make no concession or
waiver of any kind as to the merits of the claims or as to any applicable procedural

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defenses to the second-amended petition if Willing returns to this court to further litigate
the second-amended petition. Id. Good cause appearing, Willing’s motion for stay and
abeyance shall be granted.
Petitioner has also filed a motion to partially waive Local Rule IA 10-3(e) (ECF
No. 54). Petitioner asks the court to waive, for purposes of this action, the provision in
Local Rule IA 10-3(e) that requires the cover page of each filed exhibit to include a
description of the exhibit. See LR IA 10-3(e); see also LR IA 10-3(i). Petitioner points
out that Local Rule IA 1-4 provides that the court may waive any provision of the local
rules, sua sponte or on a motion, if the interests of justice so require. See LR IA 1-4.
Petitioner states that adding descriptors to the cover pages of exhibits, which in this
case now total over 65, is unduly burdensome for the Federal Public Defender, which
has limited resources, hundreds of indigent clients, and limited office staff (ECF No. 54).
Petitioner states that he will still provide indexes of exhibits and exhibit cover sheets
referencing each exhibit by number. Id. In light of the number of exhibits in this habeas
corpus action, the court finds that there is good cause for the requested waiver, and will
grant the waiver for all parties.
Finally, just before counsel for petitioner filed the second amended petition,
Willing filed a third pro se motion for the appointment of new counsel (ECF No. 47). As
with the first and second, the third pro se motion is not properly before the court
because Willing is represented by counsel. Willing complains again that his counsel
refused to simply raise all grounds that petitioner directs him to include. This court
again notes that the role of Willing’s attorney is to provide counsel and not to act as a
mere scrivener. The third motion for appointment of new counsel shall be denied.
IT IS THEREFORE ORDERED that petitioner’s motion for stay and abeyance
(ECF No. 55) is GRANTED.
IT IS FURTHER ORDERED that this action is STAYED pending final resolution
of petitioner’s pending state postconviction habeas petition.

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IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner
returning to federal court with a motion to reopen the case within forty-five (45) days of
the issuance of the remittitur by the Supreme Court of Nevada, at the conclusion of the
state court proceedings on the postconviction habeas petition.
IT IS FURTHER ORDERED that petitioner’s motion to partially waive Local Rule
IA 10-3(e) (ECF No. 54) is GRANTED.
IT IS FURTHER ORDERED that petitioner’s third pro se motion for appointment
of new counsel (ECF No. 47) is DENIED.
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.

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DATED: June 22, 2017.
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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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