The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court
ORDER DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE (Dkt. No. 6.)
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 ...