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Edul Jinnah Azeez, Ii v. Matthew Cate and Kamala Harris


April 15, 2013


The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court


Petitioner Edul Jinnah Azeez, II, ("Petitioner") filed a petition for a writ of habeas corpus. (Dkt. No. 1.) In his petition, Petitioner lists seven grounds for relief, but did not allege exhaustion as to claim seven. Id. at 15.*fn1 On July 27, 2012, the undersigned issued a "Notice Regarding Possible Dismissal of Petition for Failure to Exhaust State Court Remedies" ("options Order"). (Dkt. No. 2.) This options Order advised Petitioner of his four options to proceed. Id. Petitioner had the option to (1) demonstrate exhaustion of the claim; (2) voluntarily dismiss the petition; (3) formally abandon the unexhausted claim; or (4) file a motion to stay the proceedings, using either the "stay and abeyance" or "withdrawal and abeyance" methods. Id. at 2-4. Petitioner had a deadline of September 10, 2012, to exercise an option. Id. Respondents then had a deadline of September 24, 2012, to respond to Petitioner. Id.

Petitioner did not timely exercise one of the options, and the undersigned accordingly recommended dismissal of the petition. (Dkt. No. 3.) Petitioner objected, stating he never received the options Order. (Dkt. No. 4.) In light of this objection, the Hon. William Q. Hayes declined to adopt the recommendation and allowed Petitioner forty-five days to exercise one of the options. (Dkt. No. 5.) Petitioner timely filed the pending motion to stay the proceedings and hold his petition in abeyance until he fully exhausts the unexhausted claim. (Dkt. No. 6.) Respondents oppose. (Dkt. No. 8.)

This Court hereby DENIES Petitioner's motion, for the reasons discussed below. The undersigned may resolve Petitioner's motion for stay and abeyance with an Order, rather than a Report and Recommendation. This is because Petitioner still has options to proceed with his unexhausted claim, and therefore the denial of the motion is not completely dispositive of the matter. See Broadnax v. Cate, Civil No. 12cv560 GPC (RBB), 2012 WL 5335289 at *2-3 (S.D. Cal. Oct. 26, 2012); Shrimp v. Paramo, Civil No. 12cv1537 AJB (RBB), 2013 WL 526053 at *2 (S.D. Cal. Feb. 11, 2013).


Petitioner's claims stem from a judgment of conviction entered February 19, 2010. (Dkt. No. 1 at 1.) He pursued a direct appeal, and the California Supreme Court denied his petition for review on April 14, 2012. Id. at 2. The conviction became final on July 13, 2012, which is the date his right to seek relief from the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The unexhausted claim is Petitioner's assertion that he was denied equal protection because the trial judge sentenced "similarly-situated defendants to highly disparate sentences based on race." (Dkt. No. 1 at 15.)

In the motion for a stay and abeyance of his petition, Petitioner asserts that his claim is "arguably meritorious" and that he is currently preparing "either a Petition For Review or a Petition For Writ of Habeas Corpus" for submission to the California Supreme Court. (Dkt. No. 6 at 4.) He asserts that his appellate counsel failed to timely exhaust the state court remedies for this claim, for reasons unknown. Id. at 4-5. Petitioner argues that this amounts to good cause for failure to exhaust state court remedies for claim seven. Id. at 5.


The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this Petition. See Lindh v. Murphy, 521 U.S. 320, 336-37 (1997). Habeas petitioners who wish to challenge either their state court conviction or the length of their confinement in state prison, must first exhaust their state judicial remedies. 28 U.S.C. § 2254(b), (c); Granberry v. Greer, 481 U.S. 129, 134 (1987). Ordinarily, to satisfy the exhaustion requirement, a petitioner must "fairly present[] his federal claim to the highest state court with jurisdiction to consider it . . . or . . . demonstrate[] that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing Picard v. Connor, 404 U.S. 270, 275 (1971) and Anderson v. Harless, 459 U.S. 4, 6 (1982)). AEDPA has two main purposes: (1) to "reduce delays in executing state and federal criminal sentences," and (2) to "streamline federal habeas proceedings by increasing a petitioner's incentive to exhaust all claims in state court." Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008).

The Supreme Court has held that when a petitioner files a petition containing both exhausted and unexhausted claims, a district court has the discretion to grant a stay and abeyance of the mixed petition if "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." Rhines v. Weber, 544 U.S. 269, 278 (2005). The Supreme Court made clear in Rhines, however, that "stay and abeyance should be available only in limited circumstances." Id. at 277. This is because staying a federal habeas petition "frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of federal proceedings[,]" and "undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition." Id.

The Supreme Court did not define the good cause standard in Rhines. In the Ninth Circuit good cause is, without further clarification, a standard less stringent than the "extraordinary circumstances" standard for equitable tolling of the statute of limitations. See Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). The Ninth Circuit has also rejected a broad interpretation of "good cause" and has noted Rhines' requirement that stays be granted in "limited circumstances." Wooten, 540 F.3d at 1024. Courts must "be mindful that AEDPA aims to encourage the finality of sentences and to encourage petitioners to exhaust their claims in state court before filing in federal court." Id.

Petitioner is not entitled to a stay because he has not demonstrated good cause for his failure to exhaust claim seven. He claims that his appellate counsel did not timely exhaust his state court remedies for this claim, for reasons unknown. (Dkt. No. 6 at 4-5.)

Wooten, the petitioner argued that the fact that he was "under the impression" his counsel exhausted his claim was sufficient good cause to warrant a stay. 540 F.3d at 1024. The Ninth Circuit rejected Petitioner's explanation on the grounds that accepting this reasoning as "good cause" would make stay and abeyance "routine." Id. The Court went on to note:

Indeed, if the court was willing to stay mixed petitions based on a petitioner's lack of knowledge that a claim was not exhausted, virtually every habeas petitioner, 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 instruction that district courts should only stay mixed petitions in 'limited circumstances.'

Similar to the petitioner in Wooten, Petitioner states that his counsel failed to exhaust his state court remedies for claim seven. If a stay was granted based on a finding that this was good cause for failure to exhaust, any habeas petitioner represented by counsel could argue for a stay on any claim not raised by counsel. Such an outcome would certainly make stay and abeyance "routine," a result rejected by Wooten. See Gray v. Ryan, Civil No. 09cv0709 BEN (CAB), 2010 WL 4976953 at *4 (S.D. Cal. Oct. 27, 2010) adopted 2010 WL 4974093 (S.D. Cal. Dec. 2, 2010); see also Hernandez v. California, No. C 08-4085 SI (pr), 2010 WL 1854416 at *2 (N.D. Cal. May 6, 2010) (noting that a prisoner whose appellate counsel did not raise a claim is a common occurrence of virtually everyone with unexhausted claims). It is evident that Petitioner knew about the difference in sentences by the time he filed his opening appellate brief in the California Court of Appeal. (Dkt. No. 1 at 120-21.) He therefore had ample time to raise the issue in the state courts himself.

Petitioner has failed to demonstrate good cause for failure to exhaust claim seven in state court. Therefore, this Court need not address whether the claim is meritorious or whether Petitioner engaged in any intentionally dilatory litigation tactics.*fn2

Based on the foregoing, this Court concludes that the stay and abeyance procedure is not appropriate, and hereby DENIES Petitioner's motion.


The petition contains both exhausted and unexhausted claims, and as a result, it is subject to dismissal. Rose v. Lundy, 455 U.S. 509, 522 (1982). To avoid the Court dismissing the petition on its own accord, Petitioner may choose one of the following options:

A. First Option: File a Motion to Use the Withdrawal and Abeyance Procedure

Another method of staying a timely federal petition while a petitioner returns to state court to exhaust unexhausted claims is the "withdrawal and abeyance" procedure. King v. Ryan, 564 F.3d 1133, 1139-40 (9th Cir. 2009). Unlike the "stay and abeyance" procedure, a petitioner seeking to use the "withdrawal and abeyance" procedure need not show good cause for his failure to exhaust. Id. at 1140. Under the "withdrawal and abeyance" procedure, a petitioner may withdraw the unexhausted claims from his federal petition, return to state court and exhaust those claims while the federal court holds the fully exhausted claims in abeyance, then seek to amend the timely, stayed federal petition with the newly exhausted claims. Id. The newly exhausted claims, however, must either themselves be timely under the statute of limitations or they must "relate back" to the claims in the fully-exhausted petition, that is, they must share a "common core of operative facts" with the previously exhausted claims. Id. at 1141, quoting Mayle v. , 545 U.S. 644. 659, 662-64 (2005). Petitioner is advised that it appears from the documents filed so far in this case that AEDPA's one-year statute of limitations expires July 13, 2013.

If Petitioner chooses this option, he must file a pleading with this Court no later May 13, 2013. Respondent may file a response by May 27, 2013.

B. Second Option: Voluntarily Dismiss the Petition

Petitioner may move to voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition containing only exhausted claims. See Rose, 455 U.S. at 510 (stating that when a mixed petition is dismissed, a petitioner may "return[] to state court to exhaust his claims"). Petitioner is cautioned, however, that any new federal petition must be filed before expiration of the one-year statute of limitations. 28 U.S.C. § 2244(d).*fn3 The statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is 'properly filed' when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings."); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state application for post-conviction relief which is ultimately dismissed as untimely was neither "properly filed" nor "pending" while it was under consideration by the state court, and therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, absent some other basis for tolling, the statute of limitations continues to run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

If Petitioner chooses this option, he must file a dismissal motion with this Court no later than May 13, 2013. Respondent may file a response by May 27, 2013.

C. Third Option: Formally Abandon Unexhausted Claims

Petitioner may formally abandon his unexhausted claims and proceed with his exhausted ones. See Rose, 455 U.S. at 510, 520 (stating that a petitioner who files a mixed petition may resubmit the habeas petition to present only exhausted claims). If Petitioner chooses this option, he must file a pleading with this Court no later than May 13, 2013.

Petitioner is cautioned that once he abandons his unexhausted claims, he may lose the ability to ever raise them in federal court. See Slack v. McDaniel, 529 U.S. 473, 486-87 (2000); see also 28 U.S.C. § 2244 (a)-(b).*fn4


For the foregoing reasons, Petitioner's motion for this Court to stay these proceedings and hold his petition in abeyance is DENIED.


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