Hermanson v. Baca et al

Filing 45

ORDER - Petitioner's unopposed Motion for Stay and Abeyance (ECF No. 44 ) is GRANTED. This action is STAYED pending exhaustion of the unexhausted claim in the second amended petition (ECF No. 21 ). Grant of a stay is conditione d upon Petitioner litigating his state postconviction petition or other appropriate proceeding in state court and returning to federal court to file a motion to reopen within forty-five (45) days of issuance of the remittitur. The clerk shall ADMINISTRATIVELY CLOSE this action, until such time as the court grants a motion to reopen the matter. McKibben on 8/8/2019. (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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JAMES E. HERMANSON,

Case No. 3:17-cv-00721-HDM-CBC

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Petitioner,
ORDER

v.
ISIDRO BACA, et al.,
Respondents.

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This

counseled

habeas

matter

comes

before

the

court

on

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Petitioner James E. Hermanson’s Motion for a Stay and Abeyance

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(ECF No. 44).

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deadline to do so has expired.

Respondents did not respond to this motion and the

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Petitioner challenges his 2013 conviction in state court for

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sexual assault of a child under the age of 16. (ECF No. 21 at 2).

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On June 3, 2019, this Court granted in part Respondents’ motion

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to dismiss the Second Amended Petition, concluding that Ground

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Three was unexhausted.

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stay and abeyance so that he may exhaust that claim in state

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court.

(ECF No. 43).

Petitioner now seeks a

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In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court

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placed limitations upon the discretion of the court to facilitate

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habeas petitioners’ return to state court to exhaust claims.

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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
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The

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.

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likely would be an abuse of discretion for a district court to

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deny a stay and to dismiss a mixed petition if the petitioner had

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

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potentially meritorious, and there is no indication that the

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petitioner engaged in intentionally dilatory litigation tactics.”

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Id. at 278.
The

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Ninth

Circuit

The Court went on to state that “it

has

held

that

the

application

of

an

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“extraordinary circumstances” standard does not comport with the

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“good cause” standard prescribed by Rhines.

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F.3d 654, 661–62 (9th Cir. 2005). This court has declined to

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prescribe the strictest possible standard for issuance of a stay.

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“[G]ood cause under Rhines, at least in this Circuit, should not

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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.

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Crawford, 415 F. Supp. 2d 1207, 1210 (D. Nev. 2006). Thus, a

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petitioner’s confusion over whether his petition would be timely

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filed

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unexhausted

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DiGuglielmo,

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assistance of postconviction counsel can also constitute good

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cause. Blake v. Baker, 745 F.3d 977, 982–83 (9th Cir. 2014).

constitutes

good

petition
544

in

U.S.

cause

for

federal
408,

the

2

petitioner

court.

416–17

Jackson v. Roe, 425

Id.

to

(citing

(2005)).

file his
Pace

v.

Ineffective

Petitioner argues that good cause exists because he was

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reasonably

confused

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exhausted.

Given his multiple attempts to present this claim, or

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at least a similar claim, to the state court by filing a motion

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to correct illegal sentence, an appeal of the order denying that

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motion,

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Petitioner

and

good

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cause exists for his failure to exhaust in state court.

The

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Court further finds that the unexhausted grounds are not “plainly

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meritless,” and that Petitioner has not engaged in intentionally

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dilatory litigation tactics.

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Petitioner’s unopposed motion for a stay and abeyance.
In

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and

a

has

as

writ

to

of

with

Ground

prohibition,

established

accordance

whether

his

the

the

reasonable

Three

Court

had

finds

confusion

been

that

Accordingly, the Court will grant

foregoing,

Petitioner’s

unopposed

Motion for Stay and Abeyance (ECF No. 44) is GRANTED.
It is further ordered that this action is STAYED pending

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exhaustion

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petition.
It

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is

of

the

further

unexhausted

ordered

claim

that

the

in

the

grant

second

of

a

amended

stay

is

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conditioned upon Petitioner litigating his state postconviction

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petition

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returning to federal court to file a motion to reopen within

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forty-five (45) days of issuance of the remittitur by the Supreme

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Court of Nevada at the conclusion of the state court proceedings.

or

other

appropriate

proceeding

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/ / /

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/ / /

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/ / /
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in

state

court

and

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It is further ordered that the clerk shall ADMINISTRATIVELY

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CLOSE this action, until such time as the court grants a motion

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to reopen the matter.

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IT IS SO ORDERED.

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DATED: this 8th day of August, 2019.

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________________________________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE

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