Duda v. Williams Sr et al

Filing 35

ORDER. IT IS ORDERED that 31 petitioner's motion to extend copywork limit is DENIED. IT IS FURTHER ORDERED that 27 , 34 petitioner's motions for stay and abeyance are DENIED. Status Report due by 10/22/2018. Signed by Judge Jennifer A. Dorsey on 9/21/2018. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHESTER J. DUDA,

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Case No. 2:16-cv-02108-JAD-VCF

Petitioner

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Order Denying Motions to Stay and
to Extend Prison Copywork Limit
[ECF Nos. 27, 31, 34]

v.

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BRIAN E. WILLIAMS, SR., et al.,

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Respondents

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Pro se petitioner Chester Duda brings this habeas petition under 28 U.S.C. § 2254 to

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challenge his state-court conviction after a guilty plea and sentence for using technology to lure

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children and attempted lewdness with a minor. On respondents’ motion, I determined that

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Duda’s petition is a mixed one containing both exhausted and unexhausted claims, and I gave

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Duda the option of abandoning his unexhausted claims or returning to state court to exhaust them

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with or without a stay of this action.1 Duda responded by moving for a stay and abeyance under

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Rhines v. Weber while he returns to state court to exhaust all grounds of the petition.2 Because

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Duda has failed to satisfy the Rhines standard, I deny his motions to stay and give him until

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October 22, 2018, to advise the court how he intends to proceed.

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ECF No. 16.

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ECF No. 27. Respondents opposed the motion to stay, ECF No. 28, and Hill replied. ECF No.
29. Duda filed an additional motion to stay at ECF No. 34.

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Discussion
A.

A Rhines stay is available only with a showing of good cause for failing to exhaust
meritorious claims.
In Rhines v. Weber, the United States Supreme Court limited the trial court’s ability to

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grant a stay while a habeas petitioner returns to state court to exhaust claims. 3 Under Rhines, the

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court may stay a mixed petition if (1) the habeas petitioner shows good cause; (2) the

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unexhausted claims are potentially meritorious; and (3) the petitioner has not engaged in dilatory

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litigation tactics.4 “[G]ood cause turns on whether the petitioner can set forth a reasonable

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excuse, supported by sufficient evidence, to justify” the failure to exhaust a claim in state court.5

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“While a bald assertion cannot amount to a showing of good cause, a reasonable excuse,

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supported by evidence to justify a petitioner’s failure to exhaust, will.”6 “A petitioner’s

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reasonable confusion about whether a state filing would be timely will ordinarily constitute

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‘good cause’ to excuse his failure to exhaust.” 7

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B.

Duda has not shown that a Rhines stay is available to him [ECF Nos. 27. 34].
In my order dated January 24, 2018, I granted respondents’ motion to dismiss in part and

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concluded that Duda’s grounds 3, 4, 5, 6, 9, 10, 11 and supplemental grounds 1 and 2 are

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unexhausted.8 Duda explains that he “was under the impression” that his counsel exhausted

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these claims in state court.9 Respondents argue that Duda’s confusion as to whether those claims

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Rhines v. Weber, 544 U.S. 269, 277 (2005).

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Rhines, 544 U.S. at 277; Gonzalez v. Wong, 667 F.3d 965, 977–80 (9th Cir. 2011).

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Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014).

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Id.

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Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (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).

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ECF No. 26.

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ECF No. 27.

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were exhausted does not constitute good cause.10 They point out that in Wooten v. Kirkland, the
Ninth Circuit rejected the contention that the petitioner had demonstrated good cause because it
was his “impression” that his counsel had exhausted a claim.11 The court reasoned:

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To accept that a petitioner’s “impression” that a claim had been included
in an appellate brief constitutes “good cause” would render stay-and-obey
orders routine. Indeed, if the court was willing to stay mixed petitions
based on a petitioner’s lack of knowledge that a claim was not exhausted,
virtually every habeas petitioner, at least those represented by counsel,
could argue that he thought his counsel had raised an unexhausted claim
and secure a stay. Such a scheme would run afoul of Rhines and its
instruction that district courts should only stay mixed petitions in “limited
circumstances.”12

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Duda also contends that “since grounds 3, 4, 5, 6, 9 and 10 were part of counsel’s fast

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track statement,” he thought they were exhausted.13 However, in his appeal of the denial of the

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state postconviction petition, Duda raised only the claim that his plea counsel had failed to file a

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direct appeal.14 Several months after Duda filed his motion for stay, he apparently realized the

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flaw in his argument for stay and filed what he styled as another motion for stay.15 In it, he

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changes tack and argues that he did not authorize his counsel to file the fast-track statement and

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thought counsel would merely file a notice of appeal in the state district court, which he thought

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would lead to the Nevada Supreme Court reviewing the entire state postconviction proceedings.
Neither of these arguments demonstrates good cause,16 and Duda has not addressed the

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second and third prongs of the Rhines analysis in either filing. Accordingly, I find that Duda has

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ECF No. 28 at 2–3.

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Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008).

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Id.

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ECF No. 27 at 1–2.

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Exh. 69.

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ECF No. 34.

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In Duda’s pro se state postconviction petition and in the counseled supplemental petition,
Duda raised federal grounds 3, 4, 5, 6, 9, 10. Supplemental ground 1 appears largely duplicative
of ground 10. Compare ECF No. 4 at 26–28 with ECF No. 11 at 3-3A. Exh. 21; Exh. 28; Exh.
57. The state district court conducted an evidentiary hearing and denied the claims on the merits.
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not demonstrated that he is entitled to a stay and abeyance. Duda must now inform this court in
a sworn declaration by October 22, 2018, whether he will (1) formally and forever abandon the
unexhausted grounds for relief in his federal habeas petition and proceed on the exhausted
grounds; OR (2) dismiss this petition without prejudice in order to return to state court to exhaust
his unexhausted claims.17
C.

Duda also asks this court to extend his prison copywork limit for a state-court action that

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This court will not extend Duda’s copywork limit for his state-court case
[ECF No. 31].

he is litigating.18 Because Duda is not seeking to extend his limit for this case, his motion is
denied.
Conclusion

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IT IS THEREFORE ORDERED that petitioner’s motion to extend copywork limit [ECF

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No. 31] is DENIED.
IT IS FURTHER ORDERED that petitioner’s motions for stay and abeyance [ECF

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Nos. 27, 34] are DENIED.
IT IS FURTHER ORDERED that petitioner must inform this court in a sworn

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declaration by October 22, 2018, whether he will (1) formally and forever abandon the

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unexhausted grounds for relief in his federal habeas petition and proceed on the exhausted

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grounds; OR (2) dismiss this petition without prejudice in order to return to state court to

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exhaust his unexhausted claims. If he elects to abandon his unexhausted grounds, respondents

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will have 30 days from the date petitioner serves his declaration of abandonment to file an

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answer to petitioner’s remaining grounds for relief. The answer must contain all substantive and

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procedural arguments as to the surviving grounds and must comply with Rule 5 of the Rules

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Exh. 63. Thus, most of the unexhausted claims were addressed on their merits by the state
district court.
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Duda is cautioned that statutes of limitation and other deadlines may have run or will run, and
he alone is responsible for ensuring the timeliness of his claims.

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See ECF No. 31 (explaining that his Eighth Judicial District Court case “is now heading to the
Supreme Court which approximately $25.00–$30.00 of copywork will be needed”).
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Governing Proceedings in the United States District Courts under 28 U.S.C. §2254. Petitioner
will have 30 days following service of respondents’ answer to file a reply. If petitioner fails to
respond to this order within the time permitted, this case may be dismissed without further
prior notice.
Dated: September 21, 2018
_________________________________
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U.S. District Judge Jennifer A. Dorsey
t Judge Jennifer A
Judg
nife

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