Cardenas v. Sandie et al

Filing 18

ORDER that petitioner's motion for appointment of counsel (ECF No. 17 ) is denied; petitioner's motion for stay and abeyance (ECF No. 15 ) is denied; petitioner will have until 5/12/2018 to mail motion outlined in ord er to the Clerk for filing; the entire petition will be dismissed without prejudice for lack of complete exhaustion if motion is not timely mailed for filing. Signed by Judge Miranda M. Du on 4/12/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 JOEL CARDENAS, 10 Petitioner, ORDER v. 11 12 Case No. 3:15-cv-00476-MMD-VPC DWIGHT NEVEN, et al., Respondents. 13 14 This pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 comes 15 before the Court on petitioner’s motion to stay (ECF No. 15) and motion for appointment 16 of counsel (ECF No. 17). 17 Petitioner commenced this action with the filing of his petition and a motion for 18 appointment of counsel in September 2015. The Court denied the motion for appointment 19 of counsel and directed the respondents to file a response to the petition. On August 4, 20 2016, respondents filed a motion to dismiss. Petitioner did not oppose. On December 11, 21 2017, the Court granted the motion to dismiss in part, finding most of the petitioner’s claims 22 to be unexhausted. (ECF No. 14.) As the petition was mixed, it was therefore subject to 23 dismissal pursuant to Rose v. Lundy, 455 U.S. 509 (1982). The Court directed petitioner 24 to either (1) abandon his unexhausted claims; (2) move for dismissal of the entire petition 25 so he could return to state court to exhaust his unexhausted claims; or (3) file another 26 appropriate motion, such as a motion to stay and abey. Petitioner has elected to seek from 27 /// 28 /// 1 this Court a stay and abeyance. (ECF No. 15.) He also again seeks appointment of 2 counsel. (ECF No. 17.) 3 I. Appointment of Counsel 4 There is no constitutional right to appointed counsel for a federal habeas corpus 5 proceeding. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Bonin v. Vasquez, 999 F.2d 6 425, 428 (9th Cir. 1993). The decision to appoint counsel is generally discretionary. 7 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 481 U.S. 1023 (1987); 8 Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.), cert. denied, 469 U.S. 838 (1984). 9 However, counsel must be appointed if the complexities of the case are such that denial 10 of counsel would amount to a denial of due process, and where the petitioner is a person 11 of such limited education as to be incapable of fairly presenting his claims. See Chaney, 12 801 F.2d at 1196; see also Hawkins v. Bennett, 423 F.2d 948 (8th Cir.1970). The petition 13 in this case is sufficiently clear in presenting the issues that petitioner wishes to raise, and 14 the issues are not complex. Therefore, counsel is not justified, and the motion for 15 appointment of counsel will again be denied. 16 II. Motion for Stay and Abeyance 17 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed limitations 18 upon the discretion of the court to facilitate habeas petitioners= return to state court to 19 exhaust claims. The Rhines Court stated: 20 [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) (AAn 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@). 21 22 23 24 25 26 Rhines, 544 U.S. at 277. The Court went on to state that Ait likely would be an abuse of 27 discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner 28 /// 2 1 had good cause for his failure to exhaust, his unexhausted claims are potentially 2 meritorious, and there is no indication that the petitioner engaged in intentionally dilatory 3 litigation tactics.@ Id. at 278. 4 The Ninth Circuit has held that the application of an Aextraordinary circumstances@ 5 standard does not comport with the Agood cause@ standard prescribed by Rhines. Jackson 6 v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). “[G]ood cause turns on whether the petitioner 7 can set forth a reasonable excuse, supported by sufficient evidence, to justify [the] failure” 8 to exhaust his claims in state court. Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). 9 Petitioner asserts that he did not exhaust all his claims in state court because 10 appointed counsel refused to do so. (ECF No. 15 at 2.) Petitioner further asserts that 11 counsel told him he could still present his claims in federal court even if they were not 12 exhausted. (Id. at 3.) However, petitioner does not allege that post-conviction counsel was 13 ineffective for failing to raise the unexhausted claims and has not presented any 14 information that would allow the Court to evaluate whether he has colorable claim of 15 ineffective assistance of post-conviction counsel for such failure. Further, while it is 16 perhaps possible that some of petitioner’s unexhausted claims are potentially meritorious, 17 the Court lacks sufficient information to make such a determination. Accordingly, petitioner 18 has not demonstrated any basis for granting a stay and abeyance in this case, and the 19 request must be denied. In accordance with the foregoing, it is therefore ordered that petitioner’s motion for 20 21 appointment of counsel (ECF No. 17) is denied. It is further ordered that petitioner’s motion for stay and abeyance (ECF No. 15) is 22 23 denied. 24 It is further ordered that petitioner shall, within thirty (30) days of the date of this 25 order, mail to the Clerk for filing either a: (1) a motion to dismiss seeking partial dismissal 26 of only the unexhausted claims; or (2) a motion to dismiss the entire petition without 27 prejudice in order to return to state court to exhaust the unexhausted claims. The entire 28 /// 3 1 petition will be dismissed without prejudice for lack of complete exhaustion if a motion as 2 provided for herein is not timely mailed for filing. 3 DATED THIS 12th day of April 2018. 4 5 6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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