Randolph v. Baker et al

Filing 29

ORDER Granting Petitioner's 26 Motion for Issuance of Stay and Abeyance. Respondents' 28 Motion to Extend Time to File a Response to the Petition is Denied as moot. This action is STAYED pending final resolution of Petitioner' s state court proceedings. 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 6/11/2019. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

ROGER RANDOLPH,

10

Petitioner,

Case No. 2:18-cv-00449-RFB-VCF
ORDER

v.
11
RENEE BAKER, et al.,
12
Respondents.
13
14

This habeas petition is before the court on petitioner Roger Randolph’s motion

15

for a stay in accordance with Rhines v. Weber (ECF No. 26). Respondents filed a

16

notice of non-opposition (ECF No. 27). The motion is granted.

17

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

18

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

19

exhaust claims. The Rhines Court stated:

20
21
22
23
24
25
26
27
28

[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”).

1

Rhines, 544 U.S. at 277. The Court went on to state that, “[I]t likely would be an

2

abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if

3

the petitioner had good cause for his failure to exhaust, his unexhausted claims are

4

potentially meritorious, and there is no indication that the petitioner engaged in

5

intentionally dilatory litigation tactics.” Id. at 278. The Ninth Circuit has held that the

6

application of an “extraordinary circumstances” standard does not comport with the

7

“good cause” standard prescribed by Rhines. Jackson v. Roe, 425 F.3d 654, 661-62

8

(9th Cir. 2005). The Court may stay a petition containing both exhausted and

9

unexhausted claims if: (1) the habeas petitioner has good cause; (2) the unexhausted

10

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

11

tactics. Rhines, 544 U.S. at 277; see also Wooten v. Kirkland, 540 F.3d 1019, 1023-24

12

(9th Cir. 2008).

13

Randolph explains that he has not previously presented federal ground 3 to the

14

state courts (ECF No. 26). In ground 3 he contends that he was denied the right to

15

choose whether to concede guilt at trial in violation of the Sixth Amendment (ECF No.

16

24, pp. 10-12). He states that ground 3 is based on a new rule of constitutional law set

17

forth by the Supreme Court in its May 2018 decision in McCoy v. Louisiana, 138 S. Ct.

18

1500 (2018). In McCoy, the Court held that a defendant has the Sixth Amendment right

19

to insist that his or her counsel refrain from admitting guilt. Id. at 1505. Randolph states

20

that he filed a state petition for writ of habeas corpus raising the unexhausted claim in

21

May 2019 (ECF No. 26, p. 2).

22

Respondents state that they do not concede that McCoy constitutes a new rule of

23

constitutional law, but they do not oppose the motion to stay while Randolph explores

24

possible legal avenues in state court (ECF No. 27). Especially in light of respondents’

25

non-opposition, petitioner’s motion for a stay and abeyance of this federal habeas

26

corpus proceeding is granted.

27
28

IT IS THEREFORE ORDERED that petitioner’s motion for issuance of stay and
abeyance (ECF No. 26) of this federal habeas corpus proceeding is GRANTED.
2

1
2
3
4
5

IT IS FURTHER ORDERED that respondents’ motion for extension of time to file
a response to the petition (ECF No. 28) is DENIED as moot.
IT IS FURTHER ORDERED that this action is STAYED pending final resolution
of petitioner’s state-court proceedings.
IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner

6

returning to federal court with a motion to reopen the case within 45 days of the

7

issuance of the remittitur by the Supreme Court of Nevada at the conclusion of the

8

state court proceedings on the postconviction habeas petition.

9
10

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.

11
12

DATED: June 11, 2019.

13
14
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
3