The opinion of the court was delivered by: Honorable Barry Ted Moskowitz United States District Judge
ORDER: FINDINGS AND CONCLUSIONS OF (1) DECLINING TO ADOPT THE UNITED STATES MAGISTRATE JUDGE; (2) GRANTING MOTION FOR STAY AND ABEYANCE; AND (3) ISSUING A STAY
Petitioner, a California prisoner proceeding pro se, initiated this action on February 12, 2010, by constructively filing a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, contemporaneously with a Motion for Stay and Abeyance.*fn1 (Doc. Nos. 1-2.) Petitioner challenges a 2006 conviction from the San Diego County Superior Court which resulted in a sentence of 45 years-to-life in state prison. (Pet. at 1-2.) The Petition contains nine claims, only two of which were presented to the California Supreme Court on direct appeal, and the parties agree that the Petition is "mixed" because it contains two exhausted claims and seven unexhausted claims.
Petitioner's direct appeal ended on November 19, 2008, when the California Supreme Court denied his petition for review. His conviction became final for the purposes of AEDPA's one-year statute of limitations on February 17, 2009, the last day he could have filed a petition for a writ of certiorari in the United States Supreme Court. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Thus, it appears Petitioner initiated this action several days before the statute of limitations was set to expire. However, as discussed below, it is unclear whether the statute of limitations has actually expired, because on September 17, 2009, with five months remaining on the statute of limitations, Petitioner initiated his first full round of state post-conviction review by filing a habeas petition in the trial court in which he claims to have presented six of the seven unexhausted claims. (Pet's Motion for Stay [Doc. No. 2] Ex. A.) That habeas petition was denied on December 29, 2009, on the merits and with a citation to In re Dixon, 41 Cal.2d 756 (1953). (Lodgment No. 11.) Petitioner states that he is in the process of preparing a habeas petition to be filed in the state appellate court, and requests this Court stay his mixed Petition while he concludes his first full round of state habeas proceedings.*fn2 (Pet's Motion for Stay, attached 2/9/10 Decl. of Pet. at 3.)
Petitioner contends that his claims are meritorious, that he has acted diligently in presenting them to the state courts, and that he has provided the state courts with adequate justification for any delay. (Id. at 1-2 and attached 2/9/10 Decl. of Pet. at 1-4.) He attaches his declaration filed in the state court in which he argued that he should not be held responsible for the failure to raise the claims on direct appeal because: (1) he is overwhelmed by the lengthy and ponderous litigation of his criminal case; (2) he suffers from improperly treated health problems which have interfered with his ability to do legal work while incarcerated; (3) his appointed appellate attorney was replaced without explanation; (4) jail officials limited his access to a law library and interfered with access to his case file, which is incomplete; (5) he was misled and distracted by an undercover FBI informant/agent; and (6) he has unsuccessfully attempted to retain counsel. (Id., attached 9/13/09 Decl. of Pet. at 1-5.)
Respondent opposes a stay, contending that: (1) the unexhausted claims all involve trial issues which Petitioner should have been aware of at the time of trial, and he has not shown good cause for the ten-month delay between the conclusion of his direct appeal and the filing of a habeas petition in the trial court; (2) Petitioner has failed to show that the claims are not plainly meritless; and (3) a stay is unnecessary because five months remained on the statute of limitations when Petitioner began exhausting his claims, and the limitations period is arguably tolled by his state habeas proceedings. (Opp. [Doc. No. 5] at 3-8.) Respondent argues that the denial of the pro se habeas petition by the trial court with a citation to Dixon, which Respondent contends stands for the proposition that a claim is procedurally defaulted if it could have been but was not raised on direct appeal, demonstrates that Petitioner did not establish good cause in the state court for failing to raise the claims on direct appeal. (Opp. at 7-8.)
Petitioner replies that a stay is necessary to protect his right to raise his claims on federal habeas because he risks a determination that the federal statute of limitations will not be tolled during his round of state habeas review if the petitions are denied by the state courts on procedural grounds, which could result in the claims being time-barred or procedurally defaulted in this Court. (Pet.'s Reply [Doc. No. 21] at 1-2.) He also contends that the denial of his claims with a citation to Dixon demonstrates that his appellate counsel rendered ineffective assistance by failing to present the claims on direct appeal. (Id. at 3-5.)
Presently before the Court is a Report and Recommendation ("R&R") submitted by United States Magistrate Judge Nita L. Stormes. (Doc. No. 18.) The Magistrate Judge recommends denying Petitioner's stay motion on the basis that Petitioner has not shown good cause for the delay in exhausting his claims. (R&R at 6.) The Magistrate Judge recommends that the Petition be dismissed unless Petitioner chooses one of three options: (1) abandon his unexhausted claims and proceed only with the exhausted claims; (2) voluntarily dismiss the Petition and file a new federal petition after exhausting his state court remedies; or (3) request permission to utilize the "withdrawal and abeyance" procedure by withdrawing the unexhausted claims, requesting the Court to stay the proceedings while he exhausts his state court remedies, and requesting permission to file an amended petition which includes all exhausted claims after the claims are exhausted. (R&R at 7-9.) Petitioner has filed Objections to the R&R contending that the Magistrate Judge erred in finding that he has not shown good cause for the failure to raise the claims on direct appeal. (Doc. No. 23.)
The Court has reviewed the R&R and the Objections thereto pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).
For the following reasons, the Court DECLINES TO ADOPT the Magistrate Judge's findings and conclusions, GRANTS Petitioner's Motion and ISSUES a stay.
The United States Supreme Court has held that district courts have limited discretion to stay federal habeas proceedings and hold a mixed habeas petition in abeyance while a petitioner returns to state court for purposes of exhaustion. Rhines v. Weber, 544 U.S. 269, 276-78 (2005). The Rhines Court cautioned that: "Stay and abeyance, if employed too frequently, has the potential to undermine [AEDPA's] twin purposes" of reducing delay and promoting the finality of state convictions, and the overuse of the procedure would frustrate "AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings." Id. at 277. Nevertheless, the Court noted that a district court would likely abuse its discretion in denying such a stay where "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." Id. at 278. The Supreme Court has not articulated what constitutes good cause under Rhines, but the Ninth Circuit has held that it is a less stringent standard than what constitutes good cause to establish equitable tolling, which requires that extraordinary circumstances beyond a petitioner's control be the proximate cause of the delay. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). In addition, the Ninth Circuit has "left for another day" the determination whether the "withdrawal and abeyance" procedure remains viable after Rhines. Jackson, 425 F.3d at 661.
Although the Ninth Circuit has not defined the exact contours of the good cause element, the Magistrate Judge noted that several district courts have weighed in on what constitutes good cause under Rhines, ranging from requiring an "objective factor external to the petitioner" on one end of the spectrum to "excusable neglect" on the other. (R&R at 5-6.) In fact, one district court has simply required "a prima facie case that a justifiable, legitimate reason exists which warrants the delay of federal proceedings while exhaustion occurs." Briscoe v. Scribner, 2005 WL 3500499 at *2 (E.D. Cal. 2005) (unpublished memorandum).
The determination as to whether a stay is appropriate in this case involves a number of considerations not addressed in the R&R, due in part to the fact that Petitioner presented his claims to the state supreme court after the R&R was filed. In addition, it appears that a determination as to whether Petitioner can establish good cause under Rhines is premature. For these reasons, the Court DECLINES TO ADOPT the ...