United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis pursuant to 28 U.S.C. § 1915. Currently before the court is petitioner's motion for stay and abeyance, filed September 18, 2014. Respondent has filed an opposition in accordance with the court's order. For the reasons set forth herein, the undersigned recommends that the motion be denied and this action be dismissed.
Petitioner challenges his 2012 conviction for mayhem, assault with great bodily injury, and battery with serious injury, for which he was sentenced to a term of eight years. (Pet. at 1.) Petitioner raises four separate grounds, the last three of which petitioner concedes are not exhausted. (Id. at 2, 5) Petitioner states that he did exhaust the first claim with the state supreme court: "mayhem conviction should be reversed to battery with serious injury." (Petn. at 3.) He claims the Supreme Court issued a decision on April 29, 2014, and the result was "Lost jurisdiction: for reasons out of my control. Amadeo v. Zant, 486 U.S. 214, 222 (1988) / Ivy v. Caspari, 173 F.3d 1140." (Id.) The corresponding claim raised in the instant petition is "Battery with serious injury is a necessarily included lesser offense of mayhem. Court failed to give [D]ewberry instruction." (Id. at 5.) A search of the California Courts website results in no cases found at the Supreme Court under petitioner's name. http://appellatecases.courtinfo.ca.gov/search/searchResults.cfm?dist=0&search=party. The instant petition was filed on August 20, 2014.
Respondent opposes the request for a stay, arguing that none of the claims are exhausted, and that in any event, petitioner has not shown good cause for a stay under Rhines.
I. All Claims in the Petition are Unexhausted
A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies or circumstances exist which render those remedies ineffective to protect the petitioner's rights. 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).
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, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005); King v. Ryan, 564 F.3d 1133, 1134 (9th Cir. 2009). Where the federal petition raises only claims that have not been exhausted, however, the petition should be dismissed. Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (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, 109 S.Ct. 1056, 103 L.Ed.2d 380 (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, although both petitioner and respondent have provided no evidence to support their competing positions that claim one is exhausted or unexhausted, the court's own research indicates that this claim is indeed unexhausted, as are the remaining three claims which petitioner concedes are not exhausted. Therefore, none of the claims in the federal petition have been exhausted with the California Supreme Court, as required by § 2254(b)(1). See http://appellatecases.courtinfo.ca.gov/search/searchResults.cfm?dist=0&search=party (showing results from a search for the party "Hasan Jones" on the California Supreme Court's website, revealing no habeas petition regarding this petitioner).
Petitioner asserts 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."). Because the instant petition contains only unexhausted claims, 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").
II. Stay Pursuant to Rhines
Moreover, even if claim one was exhausted and the court were to apply Rhines here, petitioner has not shown good cause for not first exhausting claims two, three and four in the California Supreme Court, as that case requires. Id.
A district court may properly stay a habeas petition and hold it in abeyance pursuant to Rhines v. Weber. See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Under Rhines, a district court may stay a mixed petition to allow a petitioner to present an unexhausted claim to the state courts. Rhines, 544 U.S. at 277. Such a stay "eliminates entirely any limitations issue with regard to the originally unexhausted claims, as the claims remain pending in federal court[.]" King, 564 F.3d at 1140. However, to qualify for a stay under Rhines, a petitioner must: (1) show good cause for his failure to exhaust all his claims before filing this action; (2) explain and demonstrate how his unexhausted claim is potentially ...