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