Herrada-Gonzalez v. Howell et al

Filing 71

ORDER denying without prejudice 53 Motion for Leave to File Excess Pages. ORDER granting 69 Motion to Stay Case; 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 1/18/2023. Case terminated. (Copies have been distributed pursuant to the NEF - HAM)

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Case 2:20-cv-01013-GMN-DJA Document 71 Filed 01/18/23 Page 1 of 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 MARIO HERRADA-GONZALEZ, 10 11 12 13 14 *** Case No. 2:20-cv-01013-GMN-DJA Order Granting Motion to Stay and Denying Motion for Leave to File an Amended Petition without Prejudice Petitioner, v. (ECF Nos. 53, 69) JERRY HOWELL, et al., Respondents. 15 28 U.S.C. § 2254 habeas corpus petitioner Mario Herrada-Gonzalez has moved 16 for leave to file a third-amended petition, which respondents oppose. (ECF Nos. 53, 60, 17 67.) Herrada-Gonzalez has now also moved for a motion for a stay in accordance with 18 Rhines v. Weber. (ECF No. 69.) Respondents have filed a non-opposition. (ECF No. 19 70.) The motion is granted. In light of the stay and abeyance, the motion for leave to 20 amend is denied without prejudice. 21 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed limitations 22 upon the discretion of the court to facilitate habeas petitioners’ return to state court to 23 exhaust claims. First, “stay and abeyance should be available only in limited 24 circumstances.” Rhines, 544 U.S. at 277. And the relief is “is only appropriate when the 25 district court determines there was good cause for the petitioner’s failure to exhaust his 26 claims first in state court. Id. Moreover, “it likely would be an abuse of discretion for a 27 district court to deny a stay and to dismiss a mixed petition if the petitioner had good 28 cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and 1 Case 2:20-cv-01013-GMN-DJA Document 71 Filed 01/18/23 Page 2 of 3 1 there is no indication that the petitioner engaged in intentionally dilatory litigation 2 tactics.” Id. at 278. The Ninth Circuit has held that the application of an “extraordinary 3 4 circumstances” standard does not comport with the “good cause” standard prescribed 5 by Rhines. See Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). The court may 6 stay a petition containing both exhausted and unexhausted claims if: (1) the habeas 7 petitioner has good cause; (2) the unexhausted claims are potentially meritorious; and 8 (3) petitioner has not engaged in dilatory litigation tactics. See Rhines, 544 U.S. at 278; 9 see also Wooten v. Kirkland, 540 F.3d 1019, 1023-24 (9th Cir. 2008). Here, Herrada-Gonzalez has returned to state court to present the claim that his 10 11 trial counsel was ineffective for failing to ask the district attorney if Herrada-Gonzalez 12 could plead to second-degree murder, with a sentence of 10 to 25 years, immediately 13 before trial or on the first day of trial. (See ECF No. 53 at 3.) He ultimately aims to file an 14 amended federal petition to add this claim. While respondents oppose amendment, they 15 do not oppose a stay. Herrada-Gonzalez argues that he has good cause for a Rhines 16 stay under Martinez v. Ryan 1 because his state postconviction counsel was ineffective 17 for failing to investigate and raise the claim. (ECF No. 69 at 10-11.) He urges the claim 18 is not plainly meritless and he is not engaging in intentionally dilatory tactics. 19 Respondents state that their lack of objection to a stay is not a concession of any kind 20 regarding the claim’s merit or any procedural defenses or arguments. (ECF No. 70 at 1.) 21 The outcome of the state court proceedings may impact the claims that Herrada- 22 Gonzalez will be able to pursue in his federal petition. Accordingly, especially in light of 23 the respondents’ non-opposition, petitioner’s motion for stay is granted. The motion for 24 leave to file an amended-petition is denied without prejudice. 25 26 27 28 Martinez held that the ineffective assistance of counsel in an initial-review collateral proceeding may establish cause excusing the procedural default of a claim of ineffective assistance of trial counsel. 566 U.S. 1, 9 (2012). With regard to Herrada-Gonzalez’ state proceedings, the Nevada Supreme Court has expressly declined to follow the Martinez exception to excuse state procedural bars. Brown v. McDaniel, 331 P.3d 867, 871-75 (Nev. 2014) (en banc). 2 1 Case 2:20-cv-01013-GMN-DJA Document 71 Filed 01/18/23 Page 3 of 3 1 2 3 4 5 IT IS THEREFORE ORDERED that petitioner’s motion for issuance of stay and abeyance (ECF No. 69) 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 6 returning to federal court with a motion to reopen the case within 45 days of the 7 issuance of the remittitur by the state appellate court at the conclusion of the state court 8 proceedings on the postconviction habeas petition. 9 10 11 12 IT IS FURTHER ORDERED that petitioner’s motion for leave to file an amended petition (ECF No. 53) is DENIED without prejudice. 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. 13 14 DATED: 18 January 2023. 15 16 17 GLORIA M. NAVARRO UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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