Macias v. Baker et al

Filing 15

ORDERED that petitioner's motion for stay and abeyance (ECF No. 12 ) is GRANTED. FURTHER ORDERED that this action is STAYED pending final resolution of petitioner's state proceedings. FURTHER ORDERED that the grant of a stay is condit ioned upon petitioner returning to federal court with a motion to reopen the case within 45 days of the issuance of the remittitur. FURTHER ORDERED that respondents' motion to dismiss (ECF No. 10 ) is DENIED without prejudice. FURTHER ORDERED that the Clerk SHALL ADMINISTRATIVELY CLOSE this action, until such time as the court grants a motion to reopen the matter. Signed by Judge Robert C. Jones on 3/6/2017. (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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***
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FRANK MACIAS,

Case No. 3:15-cv-00461-RCJ-VPC

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Petitioner,
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RENEE BAKER, et al.,

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Respondents.

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This pro se habeas matter under 28 U.S.C. § 2254 comes before the court on
respondents’ motion to dismiss the unexhausted petition (ECF No. 10). In response to
the motion to dismiss, petitioner Frank Macias filed a motion for stay and abeyance in
accordance with Rhines v. Weber pending the conclusion of his state postconviction
proceedings (ECF No. 12). Respondents opposed the motion for stay (ECF No. 14).

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I.

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ORDER

v.

Procedural History and Background

On August 5, 2008, a jury convicted Macias of count 1: robbery with the use of a
deadly weapon; count 2: attempt murder with use of a deadly weapon; and count 3:
possession of a firearm by ex-felon (exhibit 4).1 The state district court sentenced him
as follows: counts 1 and 2 – two terms of 72 to 180 months, each with an equal and
consecutive term for the deadly weapon enhancement; count 2 consecutive to count 1;
count 3 – 13 to 60 months, concurrent with counts 1 and 2; with 543 days credit for time

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Exhibits referenced in this order are exhibits to respondents’ motion to dismiss, ECF No. 10, and are found
at ECF No. 11.
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served. Id. The Nevada Supreme Court affirmed the convictions on November 4, 2009.
Exh. 6.
On January 19, 2010, Macias filed a pro se state postconviction habeas corpus
petition. Exh. 7. The state district court appointed counsel, and Macias filed a
counseled, second postconviction petition. Exh. 9. The State filed a response to the
petition. Instead of issuing a decision, on July 31, 2012, the state district court issued
an order to statistically close the case incorrectly stating the matter was resolved
pursuant to a guilty plea. Exh.10.
No action was taken on Macias’ post-conviction petitions until he resubmitted his
initial pro se petition again with the state district court on July 10, 2013. Exh. 11. The
State again filed a response, and on November 4, 2013, the district court issued an
order denying “Defendant’s Third Petition on the merits (referring to Macias’ pro se
petition filed on July 10, 2013). Exh. 12.
Macias timely appealed through counsel, arguing: “This case should be
remanded in order for the District Court to make a ruling on all issues raised by Defense
Counsel in Defendant’s Second Petition.” On September 18, 2014, the Nevada
Supreme Court dismissed the appeal, stating:

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The district court order denying Macias’ petition failed to address the
claims raised in the petition filed on October 13, 2011, by his counsel,
Brett Whipple. Because the district court order does not resolve all of the
claims raised below, it is not a final order. Therefore, we lack jurisdiction
over this appeal . . . .

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Exh. 14 (Nevada Supreme Court Case No. 64466). Remittitur issued October

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22, 2014. Exh.15.
Next, Macias dispatched his federal habeas petition for filing on September 3,

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2015 (ECF No. 6). Then, on September 30, 2015, Macias initiated continued state

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postconviction proceedings by filing a pro se, fourth postconviction petition alleging a

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double jeopardy violation of the Fifth and Eighth Amendments. Exh. 16. The State filed

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a response requesting the district court to “address the concerns outlined in the Nevada
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Supreme Court’s September 18, 2014 Order Dismissing Appeal.” Exh. 17 (arguing that
the state district court should deny all claims in Macias’ January 19, 2010, October 13,
2011, and July 10, 2013 petitions). As to the claims in Macias’ fourth postconviction
petition, the State argued that the petition was time-barred, barred by laches and/or was
successive and waived. Id.
On May 2, 2016, Macias’ postconviction counsel filed a supplemental brief
addressing the “unresolved claims from [the] October 13, 2011 petition.” Exh. 9. At the
time respondents filed their motion to dismiss Macias’ federal petition, the state
postconviction petition was briefed and ready for disposition by the state district court.
See exh. 1. This court may take judicial notice of the Nevada Supreme Court docket,
and it appears that Macias’ appeal of the denial of his state postconviction petition is
currently before the Nevada Supreme Court. Case No. 71475.
II.

Legal Standards & Analysis

Exhaustion of state remedies is a prerequisite to a federal court’s consideration
of claims presented in a petition for writ of habeas corpus. 28 U.S.C. 2254(b). The
exhaustion doctrine is based on a policy of federal-state comity designed to give state
courts the initial opportunity to correct alleged constitutional deprivations. See Picard v.
Conner, 404 U.S. 270, 275 (1971). It requires the habeas petitioner to “fairly present”
the “substance” of his federal habeas corpus claim to the state courts. Anderson v.
Harless, 459 U.S. 4, 6 (1982). The “fair presentation” requirement is only satisfied when
the claim has been presented to the highest state court by describing the operative facts
and legal theory upon which the federal claim is based. Anderson, 459 U.S. at 6;
Batchelor v. Cupp, 693 F.2d 859, 862 (9th Cir. 1982).
In his motion for stay and abeyance, Macias acknowledges that his federal
petition is unexhausted (ECF No. 12). Macias explains that in the midst of the
confusion of the errors in the state district court, and as it was unclear whether the state

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courts were going to consider his state postconviction claims on the merits at all,
counsel advised him that he should proceed with filing a federal habeas petition.
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed limitations
upon the discretion of the court to facilitate habeas petitioners’ return to state court to
exhaust claims. The 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.
The Court went on to state that, “[I]t likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the petitioner had good
cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and
there is no indication that the petitioner engaged in intentionally dilatory litigation
tactics.” Id. at 278.
Thus, this court may stay a petition containing both exhausted and unexhausted
claims if: (1) the habeas petitioner has good cause; (2) the unexhausted claims are
potentially meritorious; and (3) petitioner has not engaged in dilatory litigation tactics.
Rhines, 544 U.S. at 277; Gonzalez v. Wong, 667 F.3d 965, 977–80 (9th Cir. 2011).

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

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

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

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amount to a showing of good cause, a reasonable excuse, supported by evidence to
justify a petitioner's failure to exhaust, will.” Id. An indication that the standard is not
particularly stringent can be found in Pace v. DiGuglielmo, 544 U.S. 408 (2005), where
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the Supreme Court stated that: “[a] petitioner's reasonable confusion about whether a
state filing would be timely will ordinarily constitute ‘good cause’ to excuse his failure to
exhaust.” Pace, 544 U.S. at 416 (citing Rhines, 544 U.S. at 278). See also Jackson v.
Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (the application of an “extraordinary
circumstances” standard does not comport with the “good cause” standard prescribed
by Rhines).
Here, if anything is clear in the procedural history of Macias’ state-court litigation,
it is that Macias can demonstrate reasonable confusion about whether his state filing or
filings would be deemed timely. This court rejects respondents’ argument that granting
a stay under these particular circumstances would render orders to stay and abey
routine, in contravention of the purposes of the Antiterrorism and Effective Death
Penalty Act (AEDPA). Accordingly, petitioner’s motion for a stay and abeyance of this
federal habeas corpus proceeding is granted. Macias will need to file a motion to reopen the case after his state postconviction proceedings have concluded. In light of the
stay, respondents’ motion to dismiss shall be denied without prejudice.
III.

Conclusion

IT IS THEREFORE ORDERED that petitioner’s motion for stay and abeyance
(ECF No. 12) 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 forty-five (45) days of
the issuance of the remittitur by the Supreme Court of Nevada, at the conclusion of any
state court proceedings.

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IT IS FURTHER ORDERED that respondents’ motion to dismiss (ECF No. 10) is
DENIED without prejudice.
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.

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th
DATED: ThisFebruary 2017. 2017.
DATED: 28 6 day of March,

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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