Wilcock v. Gentry et al

Filing 32

ORDER. IT IS ORDERED that 30 petitioner's motion for issuance of stay and abeyance of this federal habeas corpus proceeding is GRANTED. IT IS FURTHER ORDERED that this action is STAYED pending final resolution of petitioner's postconvi ction habeas petition. Petitioner must return to federal court with a motion to reopen this case within 45 days of the issuance of the remittitur by the Supreme Court of Nevada at the conclusion of the state-court proceedings on his postconviction habeas petition. IT IS FURTHER ORDERED that the Clerk is directed to ADMINISTRATIVELY CLOSE this action. Signed by Judge Jennifer A. Dorsey on 6/4/2019. (Copies have been distributed pursuant to the NEF - JQC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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4 Patrick Edward Wilcock,
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Case No.: 2:17-cv-02101-JAD-CWH

Petitioner
Order Granting Motion to
Stay and Abey Proceedings

6 v.
7 Jo Gentry, et al.,
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[ECF No. 30]

Respondents

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Patrick Edward Wilcock petitions under 28 U.S.C. § 2254 for habeas corpus relief from

11 his state-court conviction for first-degree murder, burglary with a deadly weapon, robbery,
12 possession of stolen property, and two deadly weapon enhancements. Wilcock moves for a stay
13 under Rhines v. Weber to allow him to return to state court to exhaust various grounds for relief.
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Respondents do not oppose the request. 2 I grant the motion and stay this case pending

15 Wilcock’s exhaustion of state-court proceedings.
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Discussion
In Rhines v. Weber, 3 the United States Supreme Court limited the district courts’

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18 discretion to allow habeas petitioners to return to state court to exhaust claims. When a
19 petitioner pleads both exhausted and unexhausted claims—known as a mixed petition—the
20 district court may stay the petition to allow the petitioner to return to state court to exhaust the
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ECF No. 30.

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ECF No. 31.

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

1 unexhausted ones only if: (1) the habeas petitioner has good cause; (2) the unexhausted claims
2 are potentially meritorious; and (3) petitioner has not engaged in dilatory litigation tactics. 4
3 “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, supported by
4 sufficient evidence, to justify [the failure to exhaust a claim in state court].” 5 “While a bald
5 assertion cannot amount to a showing of good cause, a reasonable excuse, supported by evidence
6 to justify a petitioner’s failure to exhaust, will.” 6 The Supreme Court’s opinion in Pace v.
7 DiGuglielmo, 7 suggests that this standard is not particularly stringent, as the High Court held that
8 “[a] petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily
9 constitute ‘good cause’ to excuse his failure to exhaust.” 8
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Wilcock meets the standard for a Rhines stay. He explains that he is currently pursuing

11 Brady claims in state court related to the state’s alleged suppression of favorable and material
12 evidence regarding the state’s key witness against him. 9 While respondents do not waive any
13 defenses to Wilcock’s second-amended petition, they indicate that they do not oppose the motion
14 for stay. 10 Especially in light of respondents’ non-opposition, I find that a Rhines stay is
15 warranted, and I grant it.
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Id. 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 (2005).

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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
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comport with the “good cause” standard prescribed by Rhines).
ECF No. 30.

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ECF No. 31.
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IT IS THEREFORE ORDERED that petitioner’s motion for issuance of stay and

2 abeyance 11 of this federal habeas corpus proceeding [ECF No. 30] is GRANTED.
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IT IS FURTHER ORDERED that this action is STAYED pending final resolution of

4 petitioner’s postconviction habeas petition. Petitioner must return to federal court with a motion
5 to reopen this case within 45 days of the issuance of the remittitur by the Supreme Court of
6 Nevada at the conclusion of the state-court proceedings on his postconviction habeas petition.
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IT IS FURTHER ORDERED that the Clerk is directed to ADMINISTRATIVELY

8 CLOSE this action.
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Dated: June 4, 2019

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_________________________________
_________________
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U.S. District Judge Jennifer A. Dorsey
Judge Jennifer A. D
dg
dg J
er
er

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ECF No. 30
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