Hicks v. Baker et al

Filing 35

ORDER denying ECF No. 29 Motion to Stay; denying ECF No. 30 Motion to Amend; dismissing from this action Grounds 1A, 1C, 2A, 2B, 2C, and 2D; giving Respondents 45 days to file answer. Petitioner to reply within 45 days thereafter. Signed by Judge Miranda M. Du on 9/25/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 BRANDON M. HICKS, Case No. 3:15-cv-00215-MMD-WGC Petitioner, 11 v. ORDER 12 RENEE BAKER, et al., 13 Defendants. 14 15 The Court found that petitioner had not exhausted his state-court remedies for 16 parts of grounds 1 and 2. (ECF No. 26.) The Court directed petitioner to decide what he 17 wanted to do with those unexhausted claims. Now before the Court are petitioner’s 18 motion to stay and hold in abeyance (ECF No. 29), his motion to amend the motion to 19 stay and hold in abeyance (ECF No. 30), respondents’ opposition (ECF No. 31), and 20 petitioner’s reply (ECF No. 32). Petitioner has not shown good cause for a stay, and the 21 Court denies his motion. 22 To obtain a stay of this action while petitioner returns to state court, he must show 23 that he has “good cause for his failure to exhaust, his unexhausted claims are potentially 24 meritorious, and there is no indication that the petitioner engaged in intentionally dilatory 25 litigation tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005). Petitioner argues that the 26 ineffective assistance of post-conviction counsel is good cause for the failure to exhaust. 27 The standard for good cause due to ineffective assistance of post-conviction counsel to 28 obtain a stay is no more demanding than the standard of ineffective assistance of post- 1 conviction counsel to excuse the procedural default of a claim of ineffective assistance of 2 trial counsel. Blake v. Baker, 745 F.3d 977, 984 (9th Cir. 2014). [W]hen a State requires a prisoner to raise an ineffective-assistance-oftrial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initialreview collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Cf. Miller–El v. Cockrell, 537 U.S. 322 (2003) (describing standards for certificates of appealability to issue). 3 4 5 6 7 8 9 10 Martinez v. Ryan, 566 U.S. 1, 14 (2012). 11 The unexhausted claims in ground 1 are not claims of ineffective assistance of 12 trial counsel. They are claims that the state district court judge violated petitioner’s 13 constitutional rights when he recommended that petitioner should spend at least 20 14 years in prison before being paroled, even though his actual sentence is life 15 imprisonment with eligibility for parole starting after a minimum of 10 years. Martinez 16 and, by implication, the Rhines standard for good cause do not apply to these claims. 17 The unexhausted claims in ground 2 are claims of ineffective assistance of 18 counsel. However, petitioner did present these claims in his state post-conviction habeas 19 corpus petition. The failure to exhaust occurred when petitioner did not raise these claim 20 on appeal from the denial of that petition. Martinez does not apply to “attorney errors in 21 other kinds of proceedings, including appeals from initial-review collateral proceedings . . 22 . .” 566 U.S. at 16. Even if state post-conviction counsel was ineffective for not raising on 23 appeal the claims now contained in ground 2, he has not shown good cause under 24 Martinez for the failure to exhaust the claims. 25 In his motion to amend (ECF No. 30), petitioner states that he wishes to dismiss 26 the unexhausted grounds if the court denies his motion for a stay. The Court will do that. 27 /// 28 /// 2 1 It is therefore ordered that petitioner’s motion to stay and hold in abeyance (ECF 2 No. 29) and motion to amend the motion to stay and hold in abeyance (ECF No. 30) are 3 denied. 4 5 It is further ordered that grounds 1A, 1C, 2A, 2B, 2C, and 2D are dismissed from this action. 6 It is further ordered that respondents shall have forty-five (45) days from the date 7 of entry of this order to file and serve an answer, which will comply with Rule 5 of the 8 Rules Governing Section 2254 Cases in the United States District Courts. Petitioner will 9 have forty-five (45) days from the date on which the answer is served to file a reply. 10 DATED THIS 25th day of September 2017. 11 12 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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