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Arthur Milton Colson v. R. Barnes


August 9, 2011



Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On February 28, 2011, petitioner filed a motion to stay the petition while he exhausts his claims in state court. Dckt. No. 8. Respondent moved to dismiss the petition for failure to exhaust on March 23, 2011. Dckt. No. 12. Petitioner opposes the motion to dismiss, again requesting that the case be stayed while he exhausts his claims in the California Supreme Court. For the reasons that follow, the undersigned finds that the petition does not qualify for a stay under applicable law and that the motion to dismiss should therefore be granted.

I. Exhaustion

A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).

Exhaustion of state remedies requires that petitioners fairly present federal claims to the highest state court, either on direct appeal or through state collateral proceedings, in order to give the highest state court "the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations omitted). "[A] state prisoner has not 'fairly presented' (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law." Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by, 247 F.3d 904 (9th Cir. 2000). "[T]he petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident . . . ." Id. (citations omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) ("a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief"); Duncan, 513 U.S. at 365-66 (to exhaust a claim, a state court "must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution").

Petitioner filed two state habeas petitions (one in Shasta County Superior Court and one in the Court of Appeal for the Third Appellate District), but sought the California Supreme Court's review only through his direct criminal appeal. Resp.'s Mot. to Dism., Docs. Lodg. In Supp. Thereof (hereinafter "Lodged Docs.") Nos. 1-7. Thus, the court need only look at the brief petitioner filed with the California Supreme Court in his direct appeal to determine whether he has fairly presented the claims raised in the instant petition to that court. In that brief, petitioner argued that his conviction violated a California statute (barring double punishment for a single act) as interpreted by the California Supreme Court and that the trial court erroneously denied petitioner's motion to dismiss a strike under the state's recidivist sentencing scheme. Lodged Doc. No. 2. The sole federal claim petitioner raised was an argument that, in failing to grant his motion to dismiss a strike, the trial court had deprived him of due process. Id. at 24-25.

In the instant petition, petitioner raises the following claims: (1) that his right to be free from double jeopardy was violated because he was punished twice for a single act; (2) that his right to due process was violated because he was given a greater sentence than the legislature intended; (3) that his right to due process was violated because he was coerced to plead guilty; and (4) cumulative error. Dckt. No. 1 at 4-5. None of these claims were included in his petition for review to the California Supreme Court.*fn1 Accordingly, the petition is entirely unexhausted and must be dismissed unless a stay is appropriate.

II. Stay

In some circumstances, a petitioner may obtain a stay of a federal petition where the petition contains both unexhausted and exhausted claims or where the petitioner seeks to add currently unexhausted claims to a fully exhausted petition. See, e.g., Rhines v. Weber, 544 U.S. 269 (2005); King v. Ryan, 564 F.3d 1133, 1134 (9th Cir. 2009). Where the federal petition raises solely claims that have not been exhausted, however, the petition should be dismissed. Coleman v. Thompson, 501 U.S. 722, 731 (1991) ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted state remedies as to any of his federal claims."); Castillo v. Peoples, 489 U.S. 346, 349 (1989); Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust."); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001).

In this case, petitioner concedes that he has not exhausted any of the claims contained in his federal petition in the California Supreme Court as required by § 2254(b)(1). Petitioner argues that a stay is appropriate under Rhines. However, Rhines addressed the propriety of a stay only where the federal petition contained exhausted as well as unexhausted claims and did not overrule Coleman's statement that a petition that is entirely unexhausted should be dismissed. Rhines, 544 U.S. at 277; see Raspberry, 448 F.3d at 1154 ("We decline to extend that rule [of Rhines]to the situation where the original habeas petition contained only unexhausted claims, but the record shows that there were exhausted claims that could have been included."). The instant petition contains only unexhausted claims. Accordingly, it must be dismissed under Coleman. Jiminez, 276 F.3d at 481 ("Once [respondent] moved for dismissal, the district court was obliged to dismiss immediately, as the petition contained no exhausted claims.").

Moreover, even if the court were to apply Rhines here, petitioner has not shown good cause for not first exhausting the claims in the California Supreme Court, as that case requires. Id. A precise standard for determining whether good cause exists under Rhines has not yet been established by the U.S. Supreme Court or the Ninth Circuit. In Pace v. DiGuglielmo, the Supreme Court acknowledged that a petitioner's reasonable confusion about the timeliness of his state petition amounts to good cause for failing to exhaust. 544 U.S. 408, 416-17 (2005). The Ninth Circuit has further clarified that, to show good cause, a petitioner need not show that extraordinary circumstances caused the failure to exhaust. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). However, a petitioner's mistaken impression that his counsel had exhausted the claims in state court does not amount to good cause. Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008).

Petitioner argues that he did not exhaust his claims because he is legally unskilled and the prison law library does not employ any persons to assist him in the filing of his petition. Pet'r's Opp'n to Resp.'s Mot. to Dism., Dckt. No. 15, at 2-3. As respondent points out, however, the vast majority of habeas applicants in federal court are unrepresented and legally unskilled. If the court were to find such circumstances amounted to good cause, stays would be available to such applicants as a matter of course, rather than in "limited circumstances," as Rhines instructs. For that reason, the undersigned cannot conclude that lack of legal ability and assistance provide good cause under Rhines for failure to exhaust. See Orozco v. Harrington, No. 1:10-cv-01599 MJS HC, 2011 U.S. Dist. LEXIS 54962, *2-6 (E.D. Cal. May 23, 2011); Andris v. Barnes, No. 2:11-cv-0758 KJN P, 2011 U.S. Dist. LEXIS 41305, *6-7 (E.D. Cal. Apr. 15, 2011).

III. Recommendation

Because the petition is wholly unexhausted, a stay is inappropriate and the petition should be dismissed for failure to exhaust under § 2254(b)(1). Accordingly, it is hereby RECOMMENDED that:

1. Petitioner's February 28, 2011 motion to stay (Docket No. 8) be denied;

2. Respondent's March 23, 2011 motion to dismiss (Docket No. 12) be granted; and

3. The Clerk be directed to close the case.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing § 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).

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