Xia v. Nevada Attorney General et al

Filing 5

ORDERED that the Clerk detach, file and E-SERVE the petition (ECF No. 1 -1) on the respondents. (E-service to AG on 4/5/2017; Copy mailed to P.) Clerk shall add Adam Paul Laxalt as counsel for respondents. This action is STAYED pending final res olution of petitioner's state post conviction habeas petition. Grant of a stay is conditioned upon petitioner returning to federal court with a motion to reopen the case within 45 days of the issuance of the remittitur. Clerk SHALL ADMINISTRATIVELY CLOSE this action, until such time as the court grants a motion to reopen the matter. Signed by Judge Howard D. McKibben on 4/5/2017. (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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CHI XIA,

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Case No. 3:16-cv-00651-HDM-VPC
Petitioner,

ORDER

v.
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NEVADA ATTORNEY GENERAL, et al.,
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Respondents.
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Petitioner Chi Xia has submitted a pro se petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 and has paid the f iling fee (ECF Nos. 1-1, 4). While filed

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as one document, at the end of the petition, Xia asks this court for a stay of these

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federal proceedings until his state habeas petition is resolved (ECF No. 1-1, p. 17).

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This court, therefore, considers whether to stay this action.

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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) (“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 abuse

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of discretion for a district court to deny a stay and to dismiss a mixed petition if the

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petitioner had good cause for his failure to exhaust, his unexhausted claims are

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potentially meritorious, and there is no indication that the petitioner eng aged in

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intentionally dilatory litigation tactics.” Id. at 278. The Ninth Circuit has held that the
application of an “extraordinary circumstances” standard does not comport with the

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“good cause” standard prescribed by Rhines. Jackson v. Roe, 425 F.3d 654, 661-62
(9th Cir. 2005). The Court may stay a petition containing both exhausted and

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unexhausted claims if: (1) the habeas petitioner has good cause; (2) the unexhausted

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claims are potentially meritorious; and (3) petitioner has not engaged in dilatory litigation

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tactics. Rhines, 544 U.S. at 277; see also Wooten v. Kirkland, 540 F.3d 1019, 1023-24

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(9th Cir. 2008).

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Petitioner states on the face of his current federal petition that he has a state
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postconviction petition currently pending in state court (ECF No. 1-1, p. 1). This court

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takes judicial notice of the Nevada Supreme Court docket, and Xia appears to have an

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appeal of the denial of his state postconviction petition pending. See Nevada Supreme

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Court Case No. 64593. Xia further explains that multiple fast track appeals were filed in

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this case, he is unsure of the calculation of the AEDPA one-year time limit under 28

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U.S.C. § 2241(d)(1), and he thus has reasonable conf usion about whether he will face a

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time bar in federal court without a stay of these proceedings (ECF No. 1-1, p. 17).
In Pace v. DiGuglielmo, 544 U.S. 416 (2005), the United States Suprem e Court

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stated that a “petitioner's reasonable confusion about whether a state filing would be

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timely will ordinarily constitute good cause for him to file in federal court.” The Court

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indicated that a petitioner facing the “predicament” that could occur if he is waiting for a
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final decision from the state courts as to whether his petition was “properly filed” should
file a “protective” federal petition and ask the federal court for a stay and abeyance. In
this regard, petitioner’s pro se federal petition was appropriately filed as a protective

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petition. Petitioner has demonstrated good cause under Rhines for the failure to
exhaust all grounds of the federal petition prior to filing it. It is unclear whether

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petitioner’s state postconviction petition, which appears to raise ineffective assistance of

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counsel claims, will be deemed timely filed. Accordingly, a stay and abeyance of this

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federal habeas corpus proceeding is appropriate. Further, the grounds of the federal

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petition that petitioner seeks to exhaust in state court are not “plainly meritless” under

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the second prong of the Rhines test. Currently, the court has no indication that
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petitioner engaged in dilatory litigation tactics. This court thus concludes that petitioner

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has satisfied the criteria for a stay and abeyance under Rhines. This federal habeas

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action shall be stayed pending the resolution of Xia’s state postconviction proceedings.

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IT IS THEREFORE ORDERED that the Clerk detach, file and

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ELECTRONICALLY SERVE the petition (ECF No. 1-1) on the respondents.

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IT IS FURTHER ORDERED that the Clerk shall add Adam Paul Laxalt, Nevada

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Attorney General, as counsel for respondents.
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IT IS FURTHER ORDERED that this action is STAYED pending final resolution
of petitioner’s state postconviction habeas petition.
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 the
state court proceedings on the postconviction habeas petition.

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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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DATED: April 5, 2017.

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HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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