United States District Court, N.D. California
ORDER DENYING RESPONDENT'S MOTION TO DISMISS; AND GRANTING PETITIONER'S MOTION FOR STAY (Docket Nos. 36, 40)
EDWARD M. CHEN, District Judge.
Petitioner Richard Allen Davis is a condemned prisoner at California's San Quentin State Prison. Petitioner has filed a habeas petition containing 37 claims. The parties agree that claims 1-3, 6, 8-10, 12-17, 19-24, 29, 32-34 and 36 are exhausted, claims 35 and 37 are unexhausted, and claims 4-5, 7, 11, 18, 25-28, 30-31 and 33 are partially exhausted. These claims allege, inter alia, that: Petitioner was denied the effective assistance of counsel throughout his trial, his representation was plagued by conflict of interest, trial counsel failed to adequately prepare his mental health experts, the prosecutor committed misconduct, aggravating evidence was improperly admitted, the evidence is insufficient to support the conviction, the jury received faulty jury instructions, the trial court inadequately responded to a question from the jury, the trial court failed to excuse impaired jurors, the trial court improperly restricted the presentation of mitigation evidence, the jury committed misconduct, and that the extreme delay between the imposition of the death sentence and execution is unconstitutional. Respondent waives exhaustion as to the unexhausted portion of claim unexhausted/partially exhausted claims must be dismissed and litigation should proceed only on the remaining exhausted claims. In a cross-motion for a stay filed on May 14, 2015, Petitioner counters that the petition should instead be held in abeyance pending his exhaustion of claims in state court. In a reply filed on June 11, 2015, Respondent requests that Petitioner's motion for a stay be denied, and that Petitioner be ordered to file an amended finalized petition containing only exhausted claims. For the reasons stated below, Respondent's motion to dismiss is DENIED and Petitioner's motion for a stay is GRANTED.
In September 1996, Petitioner was sentenced to death in Santa Clara County Superior Court following a conviction of first degree murder of 12-year old Polly Klaas, as well as the burglary of her home, kidnaping, an attempted lewd act against her, two counts of false imprisonment, two counts of assault with a deadly weapon and three counts of robbery. The California Supreme Court affirmed his conviction and death sentence on June 1, 2009. People v. Davis, 46 Cal.4th 539 (2009). The United States Supreme Court denied certiorari on January 11, 2010. Davis v. California, 558 U.S. 1124 (2010).
On November 5, 2007, while his direct appeal was pending, Petitioner filed a state habeas petition. (ECF Doc. No. 2) The Supreme Court of California denied this petition on January 23, 2013.
Petitioner filed a request for appointment of federal habeas counsel and stay of execution in this Court on January 29, 2013. His request for a stay was granted and his case was referred to the Selection Board for recommendation of counsel. (ECF Doc. No. 4) The Court appointed counsel on October 21, 2013. (ECF Doc. No. 8)
On January 23, 2014, prior to the expiration of the statute of limitations period, Petitioner filed a preliminary petition. (ECF Doc. No. 9) On April 9, 2014, the parties filed a joint statement wherein Petitioner sought leave to file motions for discovery, evidence preservation and equitable tolling. (ECF Doc. No. 17) The Court denied without prejudice Petitioner's request to file a discovery motion, and granted his requests to file motions for evidence preservation and equitable tolling. (ECF Doc. No. 19)
Petitioner filed a motion for equitable tolling on June 30, 2014. This motion was granted in part and denied in part on September 15, 2014. Petitioner filed an amended petition on October 21, 2014, and further amended the petition on January 29, 2015. The instant briefing followed.
II. LEGAL STANDARD
Federal courts may not grant a writ of habeas corpus brought by a person in custody pursuant to a state court judgment unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is grounded in principles of comity as it gives states the first opportunity to correct alleged violations of a prisoner's federal rights. Coleman v. Thompson, 501 U.S. 722, 731 (1991).
The Supreme Court follows a rule of "total exhaustion" requiring that all claims in a habeas petition be exhausted before a federal court may grant the petition. Rose v. Lundy, 455 U.S. 509, 522 (1982). A district court is permitted, however, to stay a mixed petition to allow a petitioner to exhaust his claims in state court without running afoul of the one-year statute of limitations period to file for federal habeas review imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Rhines v. Weber, 544 U.S. 269, 273-75 (2005). A district court must stay a mixed petition if: (1) the petitioner has good cause for his failure to exhaust his claims, (2) the unexhausted claims are potentially meritorious, and (3) there is no indication that the petitioner intentionally engaged in dilatory tactics. Id. at 278.
The Supreme Court has not articulated with precision what constitutes "good cause" for purposes of granting a stay under Rhines. In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the Supreme Court stated in dicta that 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" without exhausting state remedies first. More recently, in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), the Supreme Court held that ineffective assistance of post-conviction counsel may constitute cause for overcoming procedural default.
The Ninth Circuit has clarified that "good cause" for failure to exhaust does not require "extraordinary circumstances." Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). Nonetheless, the good cause requirement should be interpreted in light of the Supreme Court's admonition that stays be granted only in "limited circumstances" so as not to undermine AEDPA's twin goals of reducing delays in the execution of criminal sentences and streamlining 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). A petitioner's mistaken impression that his counsel included a claim in an appellate brief does not qualify as "good cause" for failure to exhaust as such an allegation could be raised by any petitioner, rendering stay-and-abeyance orders routine. Id.
More recently, in Blake v. Baker, 745 F.3d 977, 983 (9th Cir. 2014), the Ninth Circuit held that "[ineffective assistance] by post-conviction counsel can be good cause for a Rhines stay, " finding that such a conclusion was consistent with and supported by Martinez. The court found that the "good cause element is the equitable component of the Rhines test, " and that "good cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify [the failure to exhaust.]" Id at 982. The petitioner in Blake argued that he failed to exhaust his ineffective assistance of trial counsel claim because state post-conviction counsel failed to discover evidence that he suffered extreme abuse as a child, as well as organic brain damage and psychological disorders. Id. He supported his argument with ...