United States District Court, E.D. California
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
together with a request to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915. Plaintiff has submitted the
affidavit required by § 1915(a) showing that plaintiff
is unable to prepay fees and costs or give security for them.
Accordingly, the request to proceed in forma pauperis will be
granted. 28 U.S.C. § 1915(a).
virtue of reading the petition itself, the undersigned finds,
however, that petition has failed to exhaust his state court
remedies in regard to all claims. The claims to be reviewed
in federal habeas must be presented to the California Supreme
Court either by way of petitioning for direct review after an
appeal has been denied in the California Court of Appeal, or
by way of a habeas corpus petition presented to the state
supreme court. Petitioner avers that he has not made such a
presentation, terminating all efforts with the California
Court of Appeal.
exhaustion of state court remedies is a prerequisite to the
granting of a petition for a writ of habeas corpus. 28 U.S.C.
§ 2254(b)(1). If exhaustion is to be waived, it must be
waived explicitly by respondent's counsel. 28 U.S.C.
§ 2254(b)(3). Thus, a waiver of exhaustion may not be
implied or inferred. A petitioner satisfies the exhaustion
requirement by providing the highest state court with a full
and fair opportunity to consider all claims before presenting
them to the federal court. Picard v. Connor, 404
U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d
1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S.
petition which includes only unexhausted claims may be
dismissed on that basis. However, on February 17, 2016, the
Court of Appeals for the Ninth Circuit issued an opinion
which may affect this case. Mena v. Long, 813 F.3d
908 (9th Cir. 2016) (holding that Rhines stay and
abeyance procedure applies to completely unexhausted
petitions as well as mixed petitions). Therefore the
petitioner will be provided the opportunity to move for a
stay under Mena and Rhines.
February 16, 2016 Ninth Circuit opinion in Mena
significantly changes the manner in which wholly unexhausted
federal habeas petitions are handled. The court held
"that a district court has the discretion to stay and
hold in abeyance fully unexhausted petitions under the
circumstances set forth in Rhines. Mena,
supra, 813 F.3d at 908. A district court may also
properly stay a habeas petition and hold it in abeyance
pursuant to Rhines v. Weber, 544 U.S. 269 (2005.
See King v. Ryan, 564 F.3d 1133, 1135 9th Cir.
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
meritorious; (3) describe the status of any pending state
court proceedings on his unexhausted claim; and (4) explain
how she has diligently pursued his unexhausted claim.
Rhines, 544 U.S. at 277-78.
constitutes good cause has not been precisely defined except
to indicate at the outer end that petitioner must not have
engaged in purposeful dilatory tactics, Rhines, 544
U.S. at 277-78, and that "extraordinary
circumstances" need not be found. Jackson v. Roe, 425
F.3d 654, 661-62 (9th Cir. 2005); see also Rhines,
544 U.S. at 279 (Stevens, J., concurring) (the "good
cause" requirement should not be read "to impose
the sort of strict and inflexible requirement that would trap
the unwary pro se prisoner") (internal citation
omitted); id. (Souter, J., concurring) (pro se
habeas petitioners do not come well trained to address tricky
exhaustion determinations). "But as the Jackson court
recognized, we must interpret whether a petitioner has
"good cause" for a failure to exhaust in light of
the Supreme Court's instruction in Rhines that
the district court should only stay mixed petitions in
‘limited circumstances.' We also 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." Wooten v.
Kirkland, 540 F.3d 1019, 1023-24 (9th Cir. 2008)
(quoting Jackson, 425 F.3d at 661) (internal
the Ninth Circuit stated that "a reasonable excuse,
supported by evidence to justify a petitioner's failure
to exhaust, " will demonstrate good cause under
Rhines. Blake v. Baker, 745 F.3d 977, 982
(9th Cir. 2014). In Blake, the Ninth Circuit held
that ineffective assistance of counsel by post-conviction
counsel can be good cause for a Rhines stay,
however, bare allegations of state post-conviction IAC do not
suffice. Id. at 983. The Blake court
concluded that petitioner satisfied the good cause standard
where he argued that his post-conviction counsel "failed
to conduct any independent investigation or retain experts in
order to discover the facts underlying his trial-counsel IAC
claim; namely, evidence that Blake was" subject to
severe abuse as a child and suffered from brain damage and
psychological disorders. 745 F.3d at 982 (internal quotes
omitted). The petitioner supported this argument with
extensive evidence, including psychological evaluation
reports, a declaration by the private investigator who worked
briefly for his post-conviction attorney, and thirteen
declarations from petitioner's family and friends
describing his "abhorrent" childhood conditions.
Id. at 982-83. The Blake court concluded
that the petitioner had met the Coleman/Martinez
standard to show good cause under Rhines."
Id. at 983-84 & n.7.
on the decision in Rhines, petitioner will be
required to file a motion for stay and abeyance in which he
sets forth good cause for his failure to exhaust prior to
filing the petition in this case, that his unexhausted claims
are potentially meritorious, and that he has not been
dilatory in proceeding on his claims.
cause appearing, IT IS HEREBY ORDERED that:
Petitioner is granted leave to ...