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August 25, 1997

TROY ASHMUS, Petitioner,
ARTHUR CALDERON, Warden of California State Prison at San Quentin, Respondent.

The opinion of the court was delivered by: HENDERSON




 Troy Ashmus was proceeding apace along the well-trod path from a state court conviction to federal habeas review when substantial changes in the law obscured the route and left its travelers in a realm of uncertainty. Unable to follow the customary course, Ashmus and his fellow habeas petitioners have frequently had to turn to the Courts for guidance. Troy Ashmus' most recent request raises the question of the continuing propriety of holding a federal habeas petition in abeyance. Awaiting word from the Supreme Court and the Ninth Circuit, this Court originally deferred ruling on Ashmus' abeyance motion. However, the Supreme Court passed on its opportunity to provide direction, *fn1" and communication from the Ninth Circuit does not appear to be imminently forthcoming. *fn2" In an attempt to map the course Troy Ashmus must follow to ensure federal review of all of his claims the Court now considers his request to hold his recently filed federal petition, allegedly containing only "exhausted" claims, in abeyance pending state court exhaustion of his remaining claims. *fn3"


 Troy Ashmus currently has pending before the court a petition for habeas corpus containing twenty-four claims. Ashmus, however, does not want the Court to proceed with adjudication of that petition, but instead requests that the Court stay proceedings until thirteen newly discovered claims can be joined to the federal petition. Ashmus' request stems from the federal doctrine of exhaustion which prevents Ashmus from immediately presenting his thirteen new claims to the federal court.

 In general, a federal court may not grant habeas relief until the prisoner requesting the relief has exhausted all available state remedies for each claim. 28 U.S.C. ยง 2254(b)(1); *fn4" Gray v. Netherland, 518 U.S. 152, 135 L. Ed. 2d 457, 116 S. Ct. 2074, 2081-82 (1996). Well over a hundred years have passed since the basic doctrine of exhaustion was introduced in habeas cases. See, e.g., Ex Parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S. Ct. 734 (1886) ("[It is a] duty of this court--and, we will add, of all other courts, national and state--to give preference to such principles and methods of procedure as shall seem to conciliate the distinct and independent tribunals of the states and of the Union, so that they may cooperate as harmonious members of a judicial system coextensive with the United States...."). The modern formulation of the exhaustion doctrine had been clearly stated as early as 1944. Ex parte Hawk, 321 U.S. 114, 116-17, 88 L. Ed. 572, 64 S. Ct. 448 (1944) ("Ordinarily an application for habeas corpus by one detained under a state court judgment of conviction for crime will be entertained by a federal court only after all state remedies available, including all appellate remedies in the state courts and in this Court by appeal or writ of certiorari, have been exhausted."); H.R. REP. No. 208, 80th Cong., 1st Sess. 180 (1947).

 The Supreme Court recently clarified the effect of this long-standing doctrine of exhaustion in the habeas context when it explicitly held that federal courts may not adjudicate a prisoner's claims that have not yet been presented to state court. Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). The Court, in Rose, further stated that federal courts may not address these "unexhausted claims" even where they are presented in a mixed petition, alongside "exhausted claims"--those claims already reviewed by the state courts. Consequently, a petitioner with unexhausted claims can either abandon those claims and have the federal court adjudicate the exhausted claims or postpone federal adjudication by returning to state court to exhaust available state remedies for unexhausted claims.

 Following Rose, the Ninth Circuit's Death Penalty Task Force developed a model rule that attempted to create an orderly process for managing mixed petitions and guiding petitioners in capital habeas cases. The Ninth Circuit's model served as the basis for Local Rule 296-8(e) under which courts in this district examined newly filed petitions for unexhausted claims. *fn5" Fully exhausted petitions would be adjudicated, and mixed petitions would be held in abeyance while the petitioner presented the unexhausted claims to state court. This procedure, utilizing the Ninth Circuit's suggestion that abeyance may be an appropriate procedure for mixed habeas petitions, see, e.g., Neuschafer v. Whitley, 860 F.2d 1470, 1472 n.1 (9th Cir. 1988), allowed petitioners' counsel to harmonize the confluence of pressures on them: (1) to conduct a reasonable and thorough investigation on behalf of their clients, McFarland v. Scott, 512 U.S. 849, 129 L. Ed. 2d 666, 114 S. Ct. 2568 (1994); (2) to include all discoverable claims in the first petition, McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991); and (3) to exhaust any new claims not previously presented to the state court. Rose, 455 U.S. at 509.

 In general, litigation under Local Rule 296-8(e) followed an efficient and fair course. At the conclusion of state court appellate and/or collateral review, a death row prisoner would file a request for federal counsel and a stay of execution. See Local Rule 296-4. The appointed federal counsel would conduct an investigation designed to discover all possible claims and invariably would uncover a significant number of new claims that needed presentation to the state court. Petitioners would then file a petition containing all of their claims and the federal district court would identify the unexhausted claims, order petitioners to file state court exhaustion petitions, and hold the mixed petitions in abeyance pending exhaustion proceedings. *fn6"

 This sequence of events became so common that some judges in the Northern District regularly issued scheduling orders that set deadlines for the completion of investigation, for the filing of the mixed petitions, and for the filing of the state court exhaustion petition. See, e.g., Ashmus v. Calderon, C 93-0594-TEH, Second Order Re: Scheduling and Discovery (N.D. Cal. Nov. 16, 1995); Johnson v. Calderon, C 95-0305-TEH (JSB), First Scheduling Order (N.D. Cal. Oct. 9, 1996).

 Earlier this year, however, the Ninth Circuit suddenly halted this process for the presentation of federal habeas petitions to which the Courts, petitioners, and counsel had now become accustomed. See Calderon v. United States District Court (Gordon) 107 F.3d 756 (9th Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997). First, in Greenawalt, the court held that a district court did not abuse its discretion when it declined to hold a successive petition containing a single, unexhausted claim in abeyance and instead dismissed it. Greenawalt, 105 F.3d at 1275. The Ninth Circuit further suggested that "staying the petition instead of dismissing it, pursuant to... Neuschafer...would have violated Rose." Id. at 1276. Then, in Gordon, the Ninth Circuit stated that a district court properly struck a mixed petition, noting that because the petition contained unexhausted claims, dismissal of the federal petition was required by Rose. Gordon, 107 F.3d 756 at 760. The court also vacated that portion of the district court's opinion that had relied on an Eastern District Local Rule--identical to Northern District L.R. 296-8(e)--as authority for staying a mixed petition.

 The two cases clearly demonstrate that District Courts in the Ninth Circuit may no longer hold a mixed petition in abeyance; however, their reliance on Rose in reaching that conclusion appears to be misplaced. The Rose holding is based on the doctrine of comity. While it is clear to this court how the principles of comity undergirding the exhaustion doctrine would be offended if a district court adjudicated a petition containing unexhausted claims, no such concerns are present where a court holds that same petition in abeyance. The doctrine of exhaustion serves two major principles of comity. First, the exhaustion requirement gives state courts a first opportunity to correct their own errors which helps minimize the friction between the state and federal systems by preventing federal disruption of state proceedings. Rose 455 U.S. at 518 (A "rigorously enforced total exhaustion rule" will encourage state prisoners to seek full relief first from the state courts, thereby "giving those courts the first opportunity to review all claims of constitutional error."); Duckworth v. Serrano, 454 U.S. 1, 3, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1981) (noting that the exhaustion requirement "serves to minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights"); Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1319 (2d Cir. 1975) (Feinberg J., concurring) (the exhaustion requirement "affords a state court system the chance to keep its own house in order before a federal court steps in to rule on a federal constitutional claim."). Second, the exhaustion doctrine helps preserve the role of state courts in the application of federal law. Rose, 455 U.S. at 518; Batchelor v. Cupp, 693 F.2d 859, 862-3 (9th Cir. 1982). Similarly, delaying federal intervention permits state courts to become more familiar with, and hospitable to, federally protected interests. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973).

 Courts have also noted numerous other benefits of exhaustion. The exhaustion requirement allows federal courts to avoid the potentially overwhelming burden of serving as the primary vindicators of federal constitutional rights in all state criminal prosecutions. Wade v. Mayo, 334 U.S. 672, 679-80, 92 L. Ed. 1647, 68 S. Ct. 1270 (1948) (noting that without the exhaustion rule, federal courts would face the impossible burden of having "to supervise the countless state criminal proceedings in which deprivations of federal constitutional rights are alleged."). District courts are also aided by exhaustion because federal claims fully exhausted in state courts will more often be accompanied by a complete factual record providing for a more focused and thorough review. Rose. 455 U.S. at 519-20. In addition, some courts recognize the possibility that state courts may "afford a more generous protection of the accused, and at the same time render unnecessary the decision of difficult issues of federal constitutional law." Rose v. ...

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