Macias v. Baker et al

Filing 44

ORDER - Petitioner's motion to continue stay and abeyance (ECF No. 33 ) is DENIED. Petitioner's motion for appointment of counsel (ECF No. 38 ) is DENIED. Petitioner shall have 30 days to either: (1) inform this court in a sworn declaration that he wishes to formally and forever abandon the unexhausted grounds for relief in his federal habeas petition and proceed on the exhausted grounds; OR (2) inform this court in a sworn declaration that he wishes to dismiss t his petition without prejudice in order to return to state court to exhaust his unexhausted grounds. If Petitioner elects to abandon his unexhausted grounds, Respondents shall have 30 days from the date Petitioner serves his declaration of abandonmen t in which to file an answer to Petitioner's remaining grounds for relief. Petitioner shall have 30 days following service of Respondents' answer in which to file a reply. If Petitioner fails to respond to this order within the time permitted, this case may be dismissed. Signed by Judge Robert C. Jones on 1/8/2021. (Copies have been distributed pursuant to the NEF - AB)

Case 3:15-cv-00461-RCJ-CLB Document 44 Filed 01/08/21 Page 1 of 5

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

8 FRANK MACIAS,
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Case No.: 3:15-cv-00461-RCJ-CLB
3:15-cv-00461-RCJ-VPC

Petitioner
ORDER

10 v.
11 RENEE BAKER, et al.,
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Respondents

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In March 2020, this court granted in part respondents’ motion to dismiss some

15 claims in Frank Macias’ pro se 28 U.S.C. § 2254 habeas corpus petition (ECF No. 32).
16 In response, Macias has filed a motion to stay in order that he can return to state court
17 to exhaust his unexhausted claims (ECF No. 33). He has also filed another motion for
18 appointment of counsel (ECF No. 38). Respondents oppose both motions (ECF Nos.
19 35, 40). The motions are denied.
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In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed limitations

21 upon the discretion of the court to facilitate habeas petitioners’ return to state court to
22 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

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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”).

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Rhines, 544 U.S. at 277. The Court went on to state that, “[I]t likely would be an

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7 abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if
8 the petitioner had good cause for his failure to exhaust, his unexhausted claims are
9 potentially meritorious, and there is no indication that the petitioner engaged in
10 intentionally dilatory litigation tactics.” Id. at 278. The Ninth Circuit has held that the
11 application of an “extraordinary circumstances” standard does not comport with the
12 “good cause” standard prescribed by Rhines. Jackson v. Roe, 425 F.3d 654, 661-62
13 (9th Cir. 2005). The Court may stay a petition containing both exhausted and
14 unexhausted claims if: (1) the habeas petitioner has good cause; (2) the unexhausted
15 claims are potentially meritorious; and (3) petitioner has not engaged in dilatory litigation
16 tactics. Rhines, 544 U.S. at 277; see also Wooten v. Kirkland, 540 F.3d 1019, 1023-24
17 (9th Cir. 2008).
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In March 2017, this court granted Macias’ first motion to stay this case pending

19 the completion of his state-court proceedings (ECF No. 15). The court then declined
20 when Macias sought a continuation of the stay after his state litigation concluded (ECF
21 Nos. 17, 21). The case was reopened, and respondents moved to dismiss several
22 claims (ECF Nos. 21, 23). The court dismissed 2 grounds and held that several claims
23 were unexhausted (ECF No. 32). Macias now seeks a second stay and claims that such

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Case 3:15-cv-00461-RCJ-CLB Document 44 Filed 01/08/21 Page 3 of 5

1 a stay is in order to present unexhausted claims to the state’s highest court (ECF No.
2 33). Macias states that he filed unspecified “petitions and motions” in state district court
3 in February and March 2018. But respondents represent that they have been unable to
4 identify any active state cases for Macias (ECF No. 35). This action has already been
5 stayed, and Macias does not attempt to articulate good cause for his failure to exhaust
6 these claims. The second motion to stay is denied.
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Macias has also filed a second motion for appointment of counsel (ECF No. 38).

8 When it denied his previous motion, the court explained that there is no constitutional
9 right to appointed counsel for a federal habeas corpus proceeding. Pennsylvania v.
10 Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 425, 428 (9th Cir.1993).
11 The decision to appoint counsel is generally discretionary. Chaney v. Lewis, 801 F.2d
12 1191, 1196 (9th Cir.1986), cert. denied, 481 U.S. 1023 (1987); Bashor v. Risley, 730
13 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). However, counsel must
14 be appointed if the complexities of the case are such that denial of counsel would
15 amount to a denial of due process, and where the petitioner is a person of such limited
16 education as to be incapable of fairly presenting his claims. See Chaney, 801 F.2d at
17 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). Macias’ second
18 motion for counsel is the same form motion that he filed in 2016 (see ECF Nos. 7, 38).
19 He has presented no new bases for the appointment of counsel. Further, Macias has
20 litigated in pro se extensively in this federal habeas matter as well as in his state-court
21 proceedings. The court is not persuaded that counsel is warranted. Macias’ second
22 motion for counsel is denied.
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As the motion for stay is denied, Macias must now either (1) submit a sworn

2 declaration voluntarily abandoning the unexhausted claims in his federal habeas
3 petition, and proceed only on the exhausted claims; (2) or he may opt to try to return to
4 state court to exhaust his unexhausted claims, in which case his federal habeas petition
5 will be denied without prejudice. 1
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IT IS THEREFORE ORDERED that petitioner’s motion to continue stay and

7 abeyance (ECF No. 33) is DENIED.
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IT IS FURTHER ORDERED that petitioner’s motion for appointment of counsel

9 (ECF No. 38) is DENIED.
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IT IS FURTHER ORDERED that petitioner shall have 30 days to either: (1)

11 inform this court in a sworn declaration that he wishes to formally and forever abandon
12 the unexhausted grounds for relief in his federal habeas petition and proceed on the
13 exhausted grounds; OR (2) inform this court in a sworn declaration that he wishes to
14 dismiss this petition without prejudice in order to return to state court to exhaust his
15 unexhausted grounds.
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IT IS FURTHER ORDERED that if petitioner elects to abandon his unexhausted

17 grounds, respondents shall have 30 days from the date petitioner serves his declaration
18 of abandonment in which to file an answer to petitioner’s remaining grounds for relief.
19 The answer shall contain all substantive and procedural arguments as to all surviving
20 grounds of the petition and shall comply with Rule 5 of the Rules Governing
21 Proceedings in the United States District Courts under 28 U.S.C. §2254.
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As the court has stated previously, it makes no assurances as to the timeliness of any
future-filed petition.
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IT IS FURTHER ORDERED that petitioner shall have 30 days following service

2 of respondents’ answer in which to file a reply.
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IT IS FURTHER ORDERED that if petitioner fails to respond to this order within

4 the time permitted, this case may be dismissed.
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Dated: January 8, 2021

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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