Reid v. Baker et al

Filing 22

ORDER that petitioner's motion to seal ECF No. 18 is GRANTED; petitioner's motion for a Rhines stay and abeyance ECF No. 20 is GRANTED; this action is stayed pending exhaustion of the claims in petitioner's petition; stay is conditioned upon petitioner litigating his state post-conviction petition or other appropriate proceeding in state court and returning to federal court with a motion to reopen within (45) days of issuance of the remittitur by the Supreme Court of Nevada at the conclusion of the state court proceedings; Clerk to administratively close this action. Signed by Judge Howard D. McKibben on 8/13/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RAFAEL REID,

)
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Petitioner,
)
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v.
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CCS BAKER, et al.
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Respondents.
)
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_________________________________ )

3:17-cv-00532-HDM-VPC
ORDER

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This counseled habeas matter comes before the court on the

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petitioner’s motion to stay and abey (ECF No. 20) and motion for leave

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to file under seal (ECF No. 18).

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Petitioner initiated this action with the dispatch of his 28

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U.S.C. § 2254 petition in August 2017.

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initial review, the court appointed petitioner counsel.

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Through counsel, petitioner has filed an amended petition for writ of

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habeas corpus.

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the claims in his petition, petitioner now asks the court to stay this

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action and hold his claims in abeyance while he returns to state court

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to exhaust his claims.

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request.

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(ECF No. 16).

(See ECF No. 1-1).

Following

(ECF No. 5).

Because petitioner has not exhausted

Respondents do not oppose petitioner’s

(ECF No. 21).

In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court placed
limitations upon the discretion of the court to facilitate habeas

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petitioners’ return to state court to exhaust claims.

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Court stated:

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The Rhines

[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

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likely would be an abuse of discretion for a district court to deny
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a stay and to dismiss a mixed petition if the petitioner had good
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cause

for

his

failure

to

exhaust,

his

unexhausted

claims

are

that

the

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potentially

meritorious,

and

there

is

no

indication

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petitioner engaged in intentionally dilatory litigation tactics.” Id.
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at 278.
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The

Ninth

Circuit

has

held

that

the

application

of

an

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“extraordinary circumstances” standard does not comport with the “good
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cause” standard prescribed by Rhines.

Jackson v. Roe, 425 F.3d 654,

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661-62 (9th Cir. 2005). This court has declined to prescribe the
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strictest possible standard for issuance of a stay.

“[I]t would

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appear that good cause under Rhines, at least in this Circuit, should
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not be so strict a standard as to require a showing of some extreme
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and unusual event beyond the control of the defendant.”

Riner v.

Crawford,

Thus,

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415

F.

Supp.2d

1207,

1210

(D.

Nev.

2006).

a

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petitioner’s confusion over whether or not his petition would be
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timely filed constitutes good cause for the petitioner to file his
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1 unexhausted petition in federal court.

See Riner v. Crawford, 412 F.

2 Supp. 2d at 1210 (citing Pace v. DiGuglielmo, 544 U.S. 408, 416-17
3 (2005)).
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The court has the discretion to stay a completely unexhausted

5 petition.
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Mena v. Long, 813 F.3d 907, 911 (9th Cir. 2016).

Petitioner asserts that his appellate counsel never advised him

7 that a decision had been entered in his direct appeal, despite
8 petitioner attempting to contact counsel and advising the state court
9 of counsel’s non-responsiveness.

Petitioner did not learn his appeal

10 had been decided until a year later, after another inmate suggested
11 he consult the appellate docket in his case. By the time petitioner
12 learned his appeal had been decided, the state statute of limitations
13 for habeas petitions had expired. Petitioner almost immediately filed
14 the instant federal habeas petition.
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The court finds that counsel’s failure to advise petitioner of

16 the decision in his appeal constitutes good cause for the petitioner’s
17 failure to first exhaust his claims in state court before filing in
18 federal

court.

The

court

further

finds

that

at

least

one

of

19 petitioner’s claims is not “plainly meritless,” and that petitioner
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not

engaged

in

intentionally

dilatory

litigation

tactics.

21 Accordingly, petitioner’s unopposed request for a stay and abeyance
22 (ECF No. 20) will be granted.
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Turning to petitioner’s motion for leave to file under seal,

24 petitioner seeks to file under seal four exhibits: a police interview
25 of the victim (Ex. 7); the victim’s medical records (Ex. 8); the
26 State’s psychosexual evaluation of petitioner (Ex. 9); and the defense
27 psychosexual evaluation of petitioner (Ex. 10).

The Court finds, in

28 accordance with the requirements of Kamakana v. City and County of
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1 Honolulu, 447 F.3d 1172 (9th Cir. 2006), that a compelling need to
2 protect

the

privacy

and/or

personal

identifying

information

of

3 petitioner and the victim with regard to the sealed exhibits outweighs
4 the public interest in open access to court records.
5 the

victim’s

6 references

interview

to

the

with

nature

police

of

the

contains

assault

as

In particular,

repeated,
well

as

explicit
personal

7 identifying information. Accordingly, the motion to seal (ECF No. 18)
8 will be granted.
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IT IS THEREFORE ORDERED that petitioner’s motion to seal (ECF No.

10 18) is GRANTED.
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IT IS FURTHER ORDERED that petitioner’s motion for a Rhines stay

12 and abeyance (ECF No. 20) is GRANTED.
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IT

IS

FURTHER

ORDERED

that

this

action

is

stayed

pending

14 exhaustion of the claims in petitioner's petition.
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IT IS FURTHER ORDERED that the grant of a stay is conditioned

16 upon petitioner litigating his state post-conviction petition or other
17 appropriate proceeding in state court and returning to federal court
18 with a motion to reopen within forty-five (45) days of issuance of the
19 remittitur by the Supreme Court of Nevada at the conclusion of the
20 state court proceedings.
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IT IS FURTHER ORDERED that the Clerk shall administratively close

22 this action, until such time as the Court grants a motion to reopen
23 the matter.
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IT IS SO ORDERED.

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DATED: This 13th day of August, 2018.

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_________________________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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