Contreras v. Backer et al

Filing 26

ORDER - # 22 Motion for stay and abeyance is GRANTED. This action is STAYED pending exhaustion. Grant of stay is conditioned upon P proceeding in state court and returning within 45 days of issuance of remittitur. Clerk shall administratively close this action until such time as court grant s motion to reopen. Signed by Judge Larry R. Hicks on 10/28/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GUSTAVO CONTRERAS,

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Petitioner,
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vs.
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RENEE BAKER, et al.,
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Respondents.
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____________________________________/

3:14-cv-00435-LRH-WGC
ORDER

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On June 3, 2015, this court entered an order that granted in part, and denied in part,

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respondents’ motion to dismiss (ECF No. 10). ECF No. 21. Having concluded that petitioner’s

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amended petition contains unexhausted claims (specifically, Grounds 8, 9, and 10), the court gave

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the petitioner thirty days to either abandon those claims, voluntarily dismiss his petition without

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prejudice while he pursues exhaustion in state court, or file a motion for stay and abeyance pursuant

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to Rhines v. Weber, 544 U.S. 269 (2005). On July 6, 2015, petitioner filed a motion for stay and

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abeyance. ECF No. 22. For the reasons that follow, that motion shall be granted.
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed limitations upon the

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discretion of the court to facilitate habeas petitioners' return to state court to exhaust claims. The

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Rhines Court stated:

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[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”).
Rhines, 544 U.S. at 277.

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The Court in Rhines went on to state that, “[I]t likely would be an abuse of discretion for a

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district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his

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failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that

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the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278.

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Thus, the court may stay a petition containing both exhausted and unexhausted claims if: (1)

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the habeas petitioner has good cause; (2) the unexhausted claims are potentially meritorious; and (3)

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petitioner has not engaged in dilatory litigation tactics. Rhines, 544 U.S. at 277; Gonzalez v. Wong,

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667 F.3d 965, 977–80 (9th Cir. 2011). “[G]ood cause turns on whether the petitioner can set forth a

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reasonable excuse, supported by sufficient evidence, to justify [the failure to exhaust a claim in state

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

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a showing of good cause, a reasonable excuse, supported by evidence to justify a petitioner's failure

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to exhaust, will.” Id. An indication that the standard is not particularly stringent can be found in

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Pace v. DiGuglielmo, 544 U.S. 408 (2005), where the Supreme Court stated that: “[a] petitioner's

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reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good

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cause’ to excuse his failure to exhaust.” Pace, 544 U.S. at 416 (citing Rhines, 544 U .S. at 278).

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Here, Contreras contends that his discovery of new evidence should excuse his failure to

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exhaust his claims in state court. Contreras was convicted of battery by a prisoner in relation to

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physical altercation with another prisoner, Christian Contreras (Christian), in the Clark County jail

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on September 19, 2010. According to Contreras, his new evidence refutes testimony presented by

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the State at trial that Christian was not a gang member.
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Respondents argue that Contreras is not entitled to a stay because Ground 8(a) and 9 are

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plainly meritless and Contreras has not shown good cause for his failure to exhaust Ground 8(b) and

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Ground 10. ECF No. 23. This court agrees with respect to Grounds 8(a) and 8(b), but concludes that

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Contreras meets the Rhines requirements with respect to Grounds 9 and 10.

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In Grounds 9 and 10, Contreras alleges that counsel was ineffective in failing to locate

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evidence that Christian was a member of the Surenos gang (Ground 9) and in failing to interview

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Christian’s cell mate, Jason Scott Spencer1 (Ground 10). Respondents argue that the particular item

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of evidence cited by Contreras in Ground 9 (a booking summary report for Christian) was not

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available at the time of Contreras’ trial, thus it would have been impossible for counsel to locate it.

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The broader allegation in Ground 9, however, is that the prosecutor possessed evidence that

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Christian belonged to the Surenos, but nonetheless presented him to the jury as a non-gang member.

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See Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974) (“Pleadings drafted by laymen, proceeding in

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propria persona, are to be interpreted by the application of less rigid standards than those applicable

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to formal documents prepared by lawyers.”). The claim is not plainly meritless.

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As for Ground 10, respondents note that Contreras obtained the declaration from Spencer in

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September 2013, almost a year before he filed his federal petition, yet failed to file a second state

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post-conviction proceeding in the interim. While an earlier state proceeding would have certainly

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been the more efficient approach, the delay does not, in and of itself, deprive Contreras of good

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cause for failure to exhaust the claim. And, given that this is not a capital case, Contreras does not

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appear to benefit from prolonging collateral proceedings. See Rhines, 544 U.S. at 277-78 (noting

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that capital petitioners have a reason to intentionally engage in dilatory tactics).

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Contreras has demonstrated good cause under Rhines for failing to exhaust certain claims
prior to filing his federal petition. Because this court concludes that Contreras has satisfied the

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Contreras has submitted a declaration from Spencer, wherein Spencer indicates that Christian
was the aggressor in the altercation with Contreras and that the attack was gang-motivated. ECF No.
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criteria for a stay under Rhines, his motion for a stay and abeyance of this federal habeas corpus

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proceeding shall be granted.

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IT IS THEREFORE ORDERED that petitioner's motion for stay and abeyance (ECF No.

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22) is GRANTED. This action is STAYED pending exhaustion of petitioner’s unexhausted claims.

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IT IS FURTHER ORDERED that the grant of a stay is conditioned upon petitioner further

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litigating his state post-conviction petition or other appropriate proceeding in state court and

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returning to federal court with a motion to reopen within forty-five (45) days of issuance of the

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remittitur by the Supreme Court of Nevada at the conclusion of the state court proceedings.

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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.
Dated this 28th day of October, 2015.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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