Walsh v. Dzurenda et al

Filing 57

ORDER. IT IS ORDERED that 50 petitioner's motion for issuance of stay and abeyance of this federal habeas corpus proceeding is GRANTED.IT IS FURTHER ORDERED that 42 respondents' motion to extend time to file a responsive pleading is GRANTED nunc pro tunc.IT IS FURTHER ORDERED that 46 respondents' motion to dismiss is DENIED without prejudice.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. Signed by Judge Gloria M. Navarro on 4/27/2021. (Copies have been distributed pursuant to the NEF - MR)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9
10
11
12

ROBERT WALSH,
v.

Petitioner,

ORDER

JAMES DZURENDA, et al.,
Respondents.

13
14

Case No. 2:18-cv-01427-GMN-CWH

Robert Walsh’s 28 U.S.C. § 2254 habeas corpus petition is before the court on

15

his unopposed motion for a stay in accordance with Rhines v. Weber (ECF No. 50).

16

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

[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”).

27
28
1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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. The Ninth Circuit has held that the
application of an “extraordinary circumstances” standard does not comport with the
“good cause” standard prescribed by Rhines. Jackson v. Roe, 425 F.3d 654, 661-62
(9th Cir. 2005). 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; see also Wooten v. Kirkland, 540 F.3d 1019, 1023-24
(9th Cir. 2008).
Here, Walsh concedes that ground 3 is unexhausted and explains that his appeal
of the denial of his state postconviction petition is pending before the Nevada Court of
Appeals (ECF No. 50). He states that he has good cause for failing to exhaust ground 3
earlier because the claim is based on a July 2020 Nevada Supreme Court decision and
was not previously available. Respondents do not oppose a stay (see ECF No. 53).
Accordingly, petitioner’s motion for stay is granted. Respondents’ motion to dismiss is
denied without prejudice at this time.
IT IS THEREFORE ORDERED that petitioner’s motion for issuance of stay and
abeyance (ECF No. 50) of this federal habeas corpus proceeding is GRANTED.
IT IS FURTHER ORDERED that this action is STAYED pending final resolution
of petitioner’s postconviction habeas petition.
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 45 days of the
issuance of the remittitur by the Nevada Court of Appeals at the conclusion of the state
court proceedings on the postconviction habeas petition.
2

1
2
3
4
5
6
7

IT IS FURTHER ORDERED that respondents’ motion to extend time to file a
responsive pleading (ECF No. 42) is GRANTED nunc pro tunc.
IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 46) is
DENIED without prejudice.
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.

8
9
10

DATED: 26 April 2021.

11

GLORIA M. NAVARRO
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3