The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER AND FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
This action is proceeding on the original petition filed October 12, 2012. Petitioner raises seven claims: 1) insufficient evidence; 2) jury instruction error (two claims); 3) prosecutorial misconduct; 4) cumulative error; 5) ineffective assistance of appellate counsel; 6) ineffective assistance of trial counsel.
Pending before the court is petitioner's January 28, 2013 motion to stay this action pending exhaustion of unexhausted claims. For the following reasons, the undersigned recommends that this motion be granted as to all unexhausted claims except for the ineffective assistance of trial counsel claim.
In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court held that a district court is permitted to stay a mixed petition -- a petition containing both exhausted and unexhausted claims -- in "limited circumstances," so that a petitioner may present his unexhausted claims to the state court without losing his right to federal habeas review due to the relevant one-year statute of limitations. 544 U.S. at 273-75, 277-78. The "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277. Under Rhines, a district court must stay a mixed petition only if (1) the petitioner has "good cause" for his failure to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics. Id. at 278; King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the Supreme Court approved the filing of "protective petitions":
Finally, petitioner challenges the fairness of our interpretation. He claims that a "petitioner trying in good faith to exhaust state remedies may litigate in state court for years only to find out at the end he was never 'properly filed,'" and thus that his federal habeas petition is time barred. Brief for Petition 30. A prisoner seeking post conviction relief might avoid this predicament, however, by filing a "protective" petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted. See Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 1531 (2005). A petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute "good cause" for him to file in federal court.
In the pending motion to stay, petitioner states that only claim one, alleging insufficient evidence, is exhausted. Petitioner alleges that he has a habeas corpus petition pending in the Yolo County Superior Court raising all of the other claims raised in the instant petition except for his ineffective assistance of counsel claim.
Turning to the issue of good cause, petitioner argues that appellate counsel's failure to raise his unexhausted claims, against petitioner's wishes, constitutes good cause for his failure to exhaust these claims.
In Rhines, the Supreme Court did not explain what showing would satisfy the requirement that a habeas petitioner demonstrate "good cause" for a prior failure to exhaust. Following Rhines, the Ninth Circuit opined that "good cause" for failure to exhaust requires something less than "extraordinary circumstances." Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005). The Ninth Circuit provided additional guidance in Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008).
In Wooten, the petitioner argued that he had good cause for his failure to exhaust because he was under the impression that counsel raised all issues from his California Court of Appeal petition in his petition before the California Supreme Court. Id. at 1024. In rejecting that argument, the Ninth Circuit explained that although good cause does not require extraordinary circumstances, it must be interpreted in light of the Supreme Court's instruction in Rhines that district courts should only stay mixed petitions in limited circumstances. Id. at 1023--24. The Court found that accepting the petitioner's reason for his failure to exhaust as good cause would make stay and abey orders routine. Id.
Indeed, if the court was willing to stay mixed petitions based on petitioner's lack of knowledge that a claim was not exhausted, virtually every habeas petition, at least those represented by counsel, could argue that he thought his counsel had raised an unexhausted claim and secure a stay. Such a scheme would run afoul of Rhines and its ...