Lavoll v. Howell et al

Filing 43

ORDER Granting 38 Motion to Stay Case. IT IS FURTHER ORDERED that this action is STAYED pending final resolution of petitioner's state proceedings. IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner returning t o federal court with a motion to reopen the case within 45 days of the issuance of the remittitur by the state appellate court at the conclusion of state-court proceedings. IT IS FURTHER ORDERED that the Clerk of Court ADMINISTRATIVELY CLOSE this action, until such time as the court grants a motion to reopen the matter. Signed by Judge Gloria M. Navarro on 10/18/2022. (Copies have been distributed pursuant to the NEF - LOE)

Case 2:19-cv-02249-GMN-EJY Document 43 Filed 10/18/22 Page 1 of 5

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
TERRANCE L. LAVOLL,

9
10

***
Case No. 2:19-cv-02249-GMN-EJY
Petitioner, ORDER

11

v.

12

JERRY HOWELL, et al.,

13

Respondents.

14
15

28 U.S.C. § 2254 habeas petitioner Terrance L. Lavoll moves for a stay and

16

abeyance of his petition while he returns to state court to exhaust one claim. (ECF No.

17

38.) Respondents oppose, and Lavoll replied. (ECF Nos. 39, 40.) The court is

18

persuaded that a stay is warranted, and therefore, grants the motion.

19

I.

20

Background
a. State Court Proceedings

21

In October 1997, a jury convicted Lavoll of count 1: sexual assault of a minor

22

under 16, 2 counts of sexual assault of a minor under 16 with a deadly weapon; and

23

solicitation of minor to engage in acts constituting crimes against nature. (Exhibit 16). 1

24

The state district court sentenced Lavoll to what amounts to three consecutive terms of

25

life with the possibility of parole. (Exh. 21.)

26
27
28

Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 19, and
are found at ECF Nos. 20-22.
1

1

Case 2:19-cv-02249-GMN-EJY Document 43 Filed 10/18/22 Page 2 of 5

1

The Nevada Supreme Court affirmed Lavoll’s convictions in April 2000 and

2

affirmed the denial of his state postconviction habeas corpus petition in November

3

2007. (Exhs. 52, 99). In November 2010, this court denied Lavoll’s first federal habeas

4

petition on the merits. Case No. 2:08-cv-00011-PMP (ECF No. 42).

5

In July 2012, an amended judgment of conviction was entered that added a

6

special sentence of lifetime supervision to commence upon release from any term of

7

imprisonment, probation, or parole. (Exh. 101.) Almost six years later, in March 2018,

8

Lavoll filed a second state postconviction petition. (Exh. 103.) The state district court

9

denied it based on multiple procedural bars, and the Nevada Court of Appeals affirmed

10

the denial of the petition as untimely and successive. (Exhs. 114, 123.)
b. Federal Court Proceedings

11
12

Lavoll dispatched his federal habeas corpus petition for filing on November 26,

13

2019. (ECF No. 1). This court granted his motion for appointment of counsel, and he

14

filed an amended petition through counsel. (ECF Nos.12, 17). In January 2022, the

15

court granted respondents’ motion to dismiss in part, dismissing grounds 3 and 4 as

16

procedurally barred, concluding that ground 1 was unexhausted, and deferring a

17

decision on ground 2. (ECF No. 34.)

18

II.

Motion for Stay

19

Lavoll now moves for a stay and abeyance to return to state court to exhaust

20

ground 1. (ECF No. 38.) In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court

21

placed limitations upon the discretion of the court to facilitate habeas petitioners’ return

22

to state court to exhaust claims. First, “stay and abeyance should be available only in

23

limited circumstances.” Rhines, 544 U.S. at 277. And the relief is “is only appropriate

24

when the district court determines there was good cause for the petitioner’s failure to

25

exhaust his claims first in state court. Id. However, “it likely would be an abuse of

26

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

27

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

28

potentially meritorious, and there is no indication that the petitioner engaged in
2

Case 2:19-cv-02249-GMN-EJY Document 43 Filed 10/18/22 Page 3 of 5

1

intentionally dilatory litigation tactics.” Id. at 278; see also Gonzalez v. Wong, 667 F.3d

2

965, 977–80 (9th Cir. 2011).

3

“[G]ood cause turns on whether the petitioner can set forth a reasonable excuse,

4

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

5

Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “While a bald assertion cannot

6

amount to a showing of good cause, a reasonable excuse, supported by evidence to

7

justify a petitioner’s failure to exhaust, will.” Id. An indication that the standard is not

8

particularly stringent can be found in Pace v. DiGuglielmo, 544 U.S. 408 (2005), where

9

the Supreme Court stated that: “[a] petitioner’s reasonable confusion about whether a

10

state filing would be timely will ordinarily constitute ‘good cause’ to excuse his failure to

11

exhaust.” Pace, 544 U.S. at 416 (citing Rhines, 544 U.S. at 278). See also Jackson v.

12

Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (the application of an “extraordinary

13

circumstances” standard does not comport with the “good cause” standard prescribed

14

by Rhines).

15

As ground 1, Lavoll alleges that he was denied the right to choose whether to

16

concede guilt at trial in violation of his right to choose the objective of the defense under

17

the Sixth and Fourteenth Amendments. (ECF No. 17 at 7-10.) He argues that his

18

counsel conceded during closing arguments that Lavoll was guilty of a lesser offense

19

though Lavoll never agreed to this concession.

20

Lavoll relies on McCoy v. Louisiana, wherein the Supreme Court held that

21

defense counsel’s concession of guilt, when the accused wished to maintain his

22

innocence, violated the accused’s Sixth Amendment right to choose the objective of the

23

defense. 138 S.Ct. 1500 (2018). In McCoy the Court explained that “[b]ecause a client’s

24

autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-

25

assistance-of-counsel jurisprudence, Strickland v. Washington, 466 U.S. 668 (1984), or

26

United States v. Chronic, 466 U.S. 648 (1984) . . . .” Id. at 1510-1511.

27
28

Lavoll points out that McCoy was decided in May 2018, while his state petition
was pending and one month before the state district court denied the petition. (ECF No.
3

Case 2:19-cv-02249-GMN-EJY Document 43 Filed 10/18/22 Page 4 of 5

1

38 at 5.) He argues that his state claim was based on the same factual and legal

2

allegations as the federal claim, that it “contain[ed] some important elements of a

3

McCoy claim,” and that, at the very least, he was reasonably confused as to whether a

4

McCoy claim was exhausted. Id.

5

Opposing the motion, respondents assert that Lavoll’s argument that he believed

6

he exhausted his claim could theoretically apply to every pro se petitioner. (ECF No. 39

7

at 3.) They also contend that when Lavoll opposed respondents’ motion to dismiss, he

8

took the position that he no longer had an available state-court forum to present ground

9

1 due to Nevada’s mandatory procedural bars. (ECF No. 25 at 20-21.) This is incorrect:

10

Lavoll argued that ground 1 was exhausted, but this court disagreed. (Id. at 20; ECF No.

11

34 at 6-7.) Respondents also contend that ground 1 has no likelihood of success. (ECF

12

No. 39 at 4.) They argue that Lavoll fails to point to anywhere in the state-court record

13

where his counsel conceded to lesser charges over Lavoll’s objection. They point out

14

that counsel’s concession during closing argument was to uncharged offenses and

15

insist that Lavoll has no likelihood of success on the merits.

16

The court agrees with Lavoll that the proper inquiry here, however, is whether the

17

claim is plainly meritless. The court concludes that Lavoll has met the not-particularly-

18

strict bar of demonstrating that good cause exists and that the claim is not plainly

19

meritless. Further, there is no credible indication of intentionally dilatory litigation tactics.

20

Accordingly, the court grants the motion for stay. Lavoll will need to file a motion to re-

21

open the case after his state proceedings have concluded.

22

III.

23

IT IS THEREFORE ORDERED that petitioner’s motion for stay and abeyance

24
25
26
27
28

Conclusion

(ECF No. 38) is GRANTED.
IT IS FURTHER ORDERED that this action is STAYED pending final resolution
of petitioner’s state proceedings.
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
4

Case 2:19-cv-02249-GMN-EJY Document 43 Filed 10/18/22 Page 5 of 5

1

issuance of the remittitur by the state appellate court at the conclusion of state-court

2

proceedings.

3
4

IT IS FURTHER ORDERED that the Clerk of Court ADMINISTRATIVELY
CLOSE this action, until such time as the court grants a motion to reopen the matter.

5
6

DATED: 18 October 2022.

7

GLORIA M. NAVARRO
UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5