Carey v. McDaniel et al

Filing 18

ORDER denying 17 Motion to Stay. Petition, as amended, will be dismissed without prejudice unless petitioner moves to dismiss Ground II within 21 days. Please see attached for details. Signed by Judge Larry R. Hicks on 11/19/12. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4
5

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

6
7
8

GORDON M. CAREY,
Petitioner,

9
10

vs.

3:10-cv-00143-LRH-WGC
ORDER

11
12
13

E.K. MCDANIEL, et al.,
Respondents.

14
15
16

This represented habeas matter under 28 U.S.C. § 2254 comes before the Court on petitioner’s
motion (#17) to stay in order to return to state court to exhaust an unexhausted claim.

17

Following upon the Court’s recent order (#15) denying a prior ambiguous motion without

18

prejudice, petitioner’s response (#16) thereto, the pending motion (#17), and petitioner’s prior statement

19

(#14), it is clear that petitioner is seeking a stay pursuant only to Rhines v. Weber, 544 U.S. 269 (2005).

20

That is, petitioner is not seeking a stay under Rhines or in the alternative under Kelly v. Small, 315 F.3d

21

1063 (9th Cir. 2003). See generally King v. Ryan, 564 F.3d 1133 (2009)(comparing stay procedures).

22

The Court therefore looks only to the question of whether a stay is appropriate under the Rhines criteria.

23

The Court reiterates, as it stated in the most recent order, that it remains petitioner’s responsibility to

24

clearly frame his request for relief.

25

In order to obtain a stay under Rhines, a petitioner must demonstrate that there was good cause

26

for the failure to exhaust the claims, that the unexhausted claims include at least one claim that is not

27

plainly meritless, and that petitioner has not engaged in intentionally dilatory litigation tactics. See 544

28

U.S. at 278.

1

The precise contours of what constitutes “good cause” in this context remain to be fully

2

developed in the jurisprudence, but the phrase is not an entirely empty vessel under currently governing

3

precedent.

4

On the one hand, the Ninth Circuit has held that a requirement that the petitioner show

5

“extraordinary circumstances” to obtain a stay does not comport with the good cause standard in Rhines.

6

See Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005).

7

On the other hand, Rhines instructs that a stay should be available only in “limited

8

circumstances,” and the requirement of good cause therefore should not be interpreted in a manner that

9

would render stay orders routine.

Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008).

10

Accordingly, a mere impression by a petitioner that a claim was exhausted is not sufficient to establish

11

good cause for a failure to exhaust, given that, if it were, “virtually every habeas petitioner, at least those

12

represented by counsel, could argue that he thought his counsel had raised an unexhausted claim and

13

secure a stay.” Id. (emphasis in original).

14
15

The Court is not persuaded that petitioner has demonstrated good cause for the failure to exhaust
the unexhausted claim.

16

To recap, petitioner pled guilty to second-degree murder with the use of a firearm. Under the

17

law in force at the time of the offense, the state sentencing enhancement statute provided for an

18

automatic enhancement of an additional equal and consecutive sentence to the sentence imposed on the

19

primary offense.

20

provide for a more flexible enhanced sentencing structure.

21

understanding that the parties remained free on appeal to argue whether an amendment to the sentencing

22

enhancement statute for use of a firearm that was enacted after the offense should apply to his

23

sentencing.1

After the offense but before petitioner’s sentencing, the statute was amended to
Petitioner’s plea was entered with the

24

While petitioner’s appeal was pending, the Supreme Court of Nevada held in State v. Second

25

Judicial District Court (Pullin) 124 Nev. 564, 188 P.3d 1079 (2008), that the amendment did not apply

26
27
1

28

The abbreviated s ummary here of the s tate and federal procedural his tory is drawn from the more detailed
procedural s ummary, with s upporting citations , set forth in #12.

-2-

1

to offenders who committed their offenses prior to the effective date of the amendment but who were

2

sentenced after that date.

3

On petitioner’s appeal, the Supreme Court of Nevada rejected petitioner’s argument that the

4

federal constitution required that the amendment apply retroactively to his case, and the state high court

5

declined to reconsider Pullin.

6

In the original federal petition, petitioner asserted a single claim that a federal doctrine of lenity

7

applicable to the States through the Due Process Clause of the Fourteenth Amendment required that an

8

ameliorative sentencing statute be applied retroactively to offenses committed before the statute where

9

the sentencing occurred after the adoption of the statute.

10

The Court thereafter ordered petitioner to show cause why the petition should not be dismissed

11

with prejudice on the merits. The show-cause order extensively reviewed the United States Supreme

12

Court decisions relied upon by petitioner and posited that the Nevada Supreme Court’s rejection of

13

petitioner’s claim was neither contrary to nor an unreasonable application of clearly established federal

14

law as determined by the Supreme Court.

15

In his November 8, 2010, show-cause response, petitioner, inter alia, presented argument on a

16

new legal claim that had not been presented in the original petition. In that claim, petitioner alleged

17

for the first time that the state supreme court had denied him due process of law by unforeseeably

18

enlarging the meaning of the state criminal statute through an unforeseeable and detrimental new

19

interpretation of the statute in Pulllin that was applied retroactively to him. Petitioner relied upon, inter

20

alia, Bouie v. City of Columbia, 378 U.S. 347 (1964), in support of this new claim.

21

The Court directed petitioner to file an amended petition if he intended to pursue the new claim

22

and, if such a claim were pursued, to show cause why the amended petition was not subject to dismissal

23

as a mixed petition with an unexhausted claim.

24

following review of the show-cause response, the Court held that the Bouie claim was not exhausted.

25

As discussed in detail in the prior order (#12), the new claim in the amended petition is distinct and

26

different from the claim presented in the original petition, and the new claim was not fairly presented

27

to the state supreme court on direct appeal and exhausted.

28

Petitioner thereafter amended the petition, and,

////
-3-

1

In the pending motion, petitioner seeks to establish good cause on the following basis:

2

In applying Rhines, firstly, in this case undisputedly “good
cause” exists. It is Mr. Carey’s position that his Bouie claim, or Ground
II, did not really arise until the Nevada Supreme Court decided Barren
v. State in June of 2012. With due regard to the court’s comments in
footnote 15 of its October 23, 2012 Order [#12, at 12 n.15], the
undersigned would expect the Attorney General to argue that a mere
error of State law cannot give rise to federal habeas relief. See Gilmore
v. Taylor, 508 U.S. 333, 342 344 (1993). Therefore, the argument would
go, if the Nevada Supreme Court in 2008 in Pullin followed the 1994
Castillo decision erroneously for sake of argument, that is a mere issue
of State law. In so saying, we do not concede the correctness of that
argument; we simply say we would expect the Attorney General to make
it. However, when the 2012 Nevada Supreme Court handed down
Barren that simply could not be reconciled with Castillo, the decision
begged for Castillo to be overruled. But because Pullin was based
directly on Castillo and in the final analysis only could be based on
Castillo, the handing down of Barren without the overruling of
Castillo (or even the distinction of Castillo) modified the law in an
unforeseeable fashion to the constitutional detriment of Mr. Carey.
Playing devil’s advocate, we simply cannot fathom how the Attorney
General is going to respond to that!

3
4
5
6
7
8
9
10
11
12
13

However, the bottom line of the October 23, 2012 Order remains:
It should be up to the Nevada Supreme Court to find a way to extricate
itself out of this mess – if it can.

14
15
16
17

#17, at 4-5.
This convoluted straw man argument completely begs the question and fails to demonstrate good
cause for the failure to exhaust petitioner’s claim under the 1964 decision in Bouie.

18

Petitioner did not need to wait for a 2012 state supreme court decision to claim that the 2008

19

Pullin decision constituted an unforeseeable expansion of the state criminal statute. The 2008 Pullin

20

decision either was an unforeseeable expansion of Nevada state law when it was issued in 2008 or it

21

was not. A 2008 decision does not become unforeseeable in 2008 because of a decision issued four

22

years later. Carey did not need to wait for a 2012 case to argue that a 2008 decision was unforeseeable.

23

Indeed, over and above petitioner’s fundamentally flawed logic, the record in this case

24

conclusively demonstrates that petitioner did not need to wait for the June 2012 decision in Barren to

25

argue that the 2008 Pullin decision constituted an unforeseeable expansion of the state criminal statute.

26

Petitioner argued in his November 8, 2010, show-cause response that Pullin represented an

27

unforeseeable expansion of the state criminal statute, relying specifically on Bouie. #6, at 1-2 & 8-9.

28

Petitioner could and did raise the claim prior to Barren; he just did not do so in the state courts.
-4-

1

Neither the state supreme court, the Attorney General, nor this Court need “extricate”

2

themselves from any purported “mess” for the Court to resolve the issue currently at hand. That issue

3

is whether petitioner had good cause for the failure to exhaust his Bouie claim prior to seeking federal

4

habeas relief.

5

constituted an unforeseeable and detrimental expansion of the state statute at any time on his direct

6

appeal, as Pullin was issued only six weeks after his conviction. Petitioner did not raise any such claim,

7

however, until after the Court’s show-cause order posited that he could not prevail under the AEDPA

8

on the different claim that was exhausted in the state courts. Petitioner’s argument in the motion to stay

9

begs the question and fails to show good cause for the failure to exhaust the claim.2

10
11

He has failed to show such good cause.

The motion for a stay therefore will be denied.

Petitioner could have alleged that Pullin

The entire petition, as amended, will be

dismissed unless petitioner dismisses the unexhausted claim within the time allowed by this order.

12

IT THEREFORE IS ORDERED that petitioner’s motion (#17) to stay is DENIED.

13

IT FURTHER IS ORDERED that the petition, as amended, will be dismissed without prejudice

14

unless petitioner moves to dismiss Ground II within twenty-one (21) days sof entry of this order. Any

15

motion filed must contain or be accompanied by, either contemporaneously or via a document filed

16

within s e ve n (7) days thereafter, a signed declaration by petitioner under penalty of perjury pursuant

17

to 28 U.S.C. § 1746 that he has conferred with his counsel in this matter regarding his options, that he

18

has read the motion, and that he has authorized that the relief sought therein be requested from the

19

Court. The entire petition will be dismissed without prejudice for lack of complete exhaustion if a

20

motion and/or the verification is not timely filed. No extension of time will be granted absent the

21

most compelling of circumstances.

22

DATED this 19th day of November, 2012.

23
24

________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

25
26
27
28

2

The Court makes , and has made, no other holding, including as to whether or not Ground II potentially is
meritorious . Petitioner’s arguments in this matter premis ed upon what the Court allegedly thought in a prior order
and/or on what “all can agree” to do not reflect any tacit holding made by the Court. Petitioner has the burden of proof.

-5-