Opinion
Case No. 3:11-cv-00505-MMD-WGC
08-19-2013
LARRY JAMES PECK, Petitioner, v. JACK PALMER, et al., Respondents.
ORDER
Before the Court are petitioner's motion to stay and abey [sic] proceedings (dkt. no. 46), respondents' opposition (dkt. no. 48), and petitioner's reply (dkt. no. 52). For the reasons stated below, the Court grants petitioner's motion.
Currently, petitioner is pursuing post-conviction relief in the state courts. The state district court has denied his petition, and the appeal is pending. To stay this action, petitioner must show that he has "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). Petitioner's claims have potential merit, and by filing his federal petition while his state petition is still pending, he is not being dilatory. From the outset of this action, petitioner admitted that he had not exhausted all of his grounds for relief in the state courts. He commenced this action because his state habeas corpus petition had been pending in state district court for about six years. Petition, at 1-12 (dkt. no. 12). The first amended petition (dkt. no. 28) also contains grounds that are still pending in state court. The Court finds that petitioner has demonstrated good cause for the failure to exhaust. The Supreme Court of the United States has held that a person may file a protective petition in federal court and then seek a stay of the proceedings when the person has doubts that a federal petition filed after the state proceedings concluded would be timely. See Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005).
The Court does not agree with respondents that the petition is completely unexhausted, which would lead to a dismissal of the action. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). The first amended petition (dkt. no. 28) contains 14 grounds. Petitioner admits that he currently is litigating grounds 2 through 14 in his state post-conviction proceedings, and those grounds are not exhausted. Ground 1 is the issue. It is a claim that the evidence was insufficient to support the verdict of guilt for first-degree murder. Petitioner did raise an insufficient-evidence claim on direct appeal. Respondents argue that petitioner presents facts in ground 1 that he did not present to the Nevada Supreme Court. Even if those new facts fundamentally alter the claim, it does not render ground 1 completely unexhausted. Respondents themselves note that petitioner presented other facts to the Nevada Supreme Court that he presents now to this Court. Opposition, at 5-6 (dkt. no. 48). If a motion to dismiss for lack of exhaustion was pending before the Court, and if the Court agreed that the new facts fundamentally altered ground 1, the Court would not dismiss the action, because most of ground 1 still would be exhausted. The petition still would be mixed, containing exhausted and unexhausted grounds. See Rose v. Lundy, 455 U.S. 509, 521-22 (1982). The Court still would give petitioner the opportunity to drop the new facts, to dismiss the action, or to seek a stay.
Given that the Court has found that petitioner has satisfied the requirements for a stay, and given that the Court has found that the petition contains at least part of a ground for relief that is exhausted, the Court grants petitioner's motion.
IT IS FURTHER ORDERED that petitioner's motion to stay and abey proceedings (dkt. no. 46) is GRANTED.
IT IS FURTHER ORDERED that this action is STAYED pending exhaustion of the unexhausted claims. Petitioner shall return to this Court with a motion to reopen within sixty (60) days of issuance of the remittitur by the Nevada Supreme Court at the conclusion of the state court proceedings. Further, petitioner or respondents otherwise may move to reopen the action and seek any relief appropriate under the circumstances.
IT FURTHER IS ORDERED that the Clerk of Court shall administratively close this action until such time as the Court grants a motion to reopen the action.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE