Nash v. Pollard

Filing 5

ORDER signed by Judge Rudolph T. Randa on 9/25/2013 DENYING 2 Motion to Stay. Matter will be dismissed unless, within 30 days of the date of this Order, Nash files request to dismiss unexhaused claims and proceed on the merits of the exhausted claims. (cc: all counsel, via US mail to Michael Nash at Waupun Correctional Institution) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL L. NASH,
Petitioner,
-vsCase No. 13-C-889
WILLIAM POLLARD, Warden,
Waupun Correctional Institution
Respondent.
DECISION AND ORDER

Michael Nash moves to stay these proceedings while he exhausts his
unexhausted claims in state court. It “likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the petitioner had good
cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and
there is no indication that the petitioner engaged in intentionally dilatory litigation
tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005). Nash argues that he has good
cause for failing to exhaust because his appellate counsel failed to raise certain claims,
even though they were “significant and obvious and clearly stronger than the issues
raised on appeal.” This is not enough to establish good cause. “Virtually everyone
who has an unexhausted claim has this same circumstance: if counsel presented the
claim in the petition for review, it would have been exhausted.” Hernandez v. Cal.,
2010 WL 1854416, at *2 (N.D. Cal. May 6, 2010); Sullivan v. Saba, 840 F. Supp. 2d
429, 437 (D. Mass. 2012) (ineffective assistance of counsel or the strategic decisions

of counsel insufficient to establish good cause under Rhines).
Therefore, Nash’s motion to stay [ECF No. 2] is DENIED. This matter will be
dismissed unless, within thirty (30) days of the date of this Order, Nash files a request
to dismiss the unexhausted claims in his petition and proceed on the merits of the
exhausted claims.
Dated at Milwaukee, Wisconsin, this 25th day of September, 2013.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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