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2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 6 CHRISTOPHER BRIAN KINDER, Case No. 3:16-cv-00449-MMD-CBC

7 Petitioner, ORDER v. 8 ROBERT LEGRAND, et al., 9 Respondents. 10 11 This counseled habeas matter comes before the Court on Petitioner’s Motion to 12 Stay and Abey (ECF No. 57). Respondents do not oppose (ECF No. 58). 13 Kinder challenges his 2012 state court conviction of two counts of Possession of 14 Child Pornography pursuant to a conditional guilty plea. (ECF No. 41-24.) On July 27, 15 2016, Kinder initiated this federal habeas proceeding pro se. (ECF No. 1.) The Court 16 appointed counsel and granted leave to amend the petition. (ECF Nos. 15, 18.) Counsel 17 filed a Second Amended Petition (ECF No. 39) in October 2018, alleging four grounds for 18 relief under the Sixth and Fourteenth Amendments. The Court granted in part and denied 19 in part Respondents’ motion to dismiss, finding that the second amended petition contains 20 one unexhausted claim—Ground 3—which alleges that Petitioner’s attorney ineffectively 21 failed to inform him that one count of possession was the maximum the State could prove 22 under Nevada law. (ECF No. 56.) Petitioner now seeks a stay and abeyance so he may 23 exhaust that claim in state court. 24 In Rhines v. Weber,

(2005), the Supreme Court placed limitations 25 upon the discretion of the court to facilitate habeas petitioners’ return to state court to 26 exhaust claims. The Rhines Court stated: 27 [S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner’s failure to present 28 his claims first to the state courts, stay and abeyance is only appropriate 1 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 2 meritless. Cf.

(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the 3 applicant to exhaust the remedies available in the courts of the State”). 4 5 Rhines,

. The Court went on to state that “it likely would be an abuse of 6 discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner 7 had good cause for his failure to exhaust, his unexhausted claims are potentially 8 meritorious, and there is no indication that the petitioner engaged in intentionally dilatory 9 litigation tactics.”

. 10 The Ninth Circuit has held that the application of an “extraordinary circumstances” 11 standard does not comport with the “good cause” standard prescribed by Rhines. Jackson 12 v. Roe,

(9th Cir. 2005). Courts in this District have declined to 13 prescribe the strictest possible standard for issuance of a stay. “[G]ood cause under 14 Rhines, at least in this Circuit, should not be so strict a standard as to require a showing 15 of some extreme and unusual event beyond the control of the defendant.” Riner v. 16 Crawford,

(D. Nev. 2006). Thus, a petitioner’s confusion over 17 whether his petition would be timely filed constitutes good cause for the petitioner to file 18 his unexhausted petition in federal court. See

(citing Pace v. DiGuglielmo,

408, 416–17 (2005)). Ineffective assistance of postconviction counsel can also constitute 20 good cause. See Blake v. Baker,

(9th Cir. 2014). 21 Petitioner argues that good cause exists because he filed his state habeas petition 22 pro se and was not able to raise the claim in Ground 3. His claim is based on Castaneda 23 v. Nevada,

(Nev. 2016), in which the Nevada Supreme Court held that a 24 defendant’s simultaneous possession at one time and place of multiple images depicting 25 child pornography “constitute[s] a single violation of NRS 200.730.”

. Kinder filed 26 his state petition in August 2015, approximately 10 months before the Nevada Supreme 27 Court decided Castaneda. The Court agrees that this constitutes good cause for the 28 failure to first exhaust the claim in state court before filing the federal petition. The Court 1 further finds that the unexhausted ground is not “plainly meritless,” and that Petitioner has 2 not engaged in intentionally dilatory litigation tactics. Accordingly, the Court will grant 3 Petitioner’s unopposed motion for a stay and abeyance. 4 In accordance with the foregoing, Petitioner’s unopposed Motion for Stay 5 and Abeyance (ECF No. 57) is granted. 6 It is further ordered that this action is stayed pending exhaustion of the 7 unexhausted claim in the second amended petition. 8 It is further ordered that the grant of a stay is conditioned upon Petitioner litigating 9 his state postconviction petition or other appropriate proceeding in state court and 10 returning to federal court with a motion to reopen within 45 days of issuance of the 11 remittitur by the Supreme Court of Nevada at the conclusion of the state court 12 proceedings. 13 It is further ordered that the Clerk of Court administratively close this action, until 14 such time as the Court grants a motion to reopen the matter. 15 DATED THIS 26th day of July 2019. 16 MIRANDA M. DU 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28