United States District Court, N.D. California
ORDER GRANTING MOTION TO STAY AND ABEY
WILLIAM ALSUP United States District Judge
a condemned inmate at San Quentin State Prison, filed a
motion requesting a stay and abeyance of his federal habeas
petition in order to fully exhaust his claims in state court.
Respondent objects. For the reasons stated below,
petitioner's motion is granted.
1993, petitioner was convicted in Napa County Superior Court
of the first-degree murders of Robert Brens, Judy Davis,
Beamon Hill, and Jason White. The jury found true the special
circumstance allegation that petitioner committed a multiple
murder, and sustained the enhancement allegation that he used
a firearm in the commission of the murders. Petitioner was
also convicted of ten counts of attempted murder, with a
finding that the attempted murders were willful, deliberate,
and premeditated, and that petitioner personally used a
firearm in the commission of the attempted murders. Finally,
petitioner was convicted of three counts of assault with a
firearm and false imprisonment for the purpose of protection
from arrest. The jury sentenced him to death on September 20,
California Supreme Court affirmed petitioner's conviction
and death sentence. People v. Houston, 54 Cal.4th
1186 (2012), modified on denial of rehearing (Sept.
19, 2012). The United States Supreme Court denied the
petition for writ of certiorari on March 18, 2013.
Houston v. California, U.S., 133 S.Ct. 1588 (2013).
his direct appeal was still pending, petitioner filed a state
habeas petition in the California Supreme Court. The petition
was denied on November 26, 2013 (Dkt. 3).
filed a request for appointment of federal habeas counsel and
stay of execution in this Court on December 4, 2013. The
request was granted (Dkt. 5). His case was referred to the
Selection Board for recommendation of counsel. Counsel was
appointed on January 2, 2015.
requests a stay of his federal habeas proceedings while he
exhausts his claims in state court (Mot. to Stay at 14). He
argues that he is entitled to a stay under Rhines v.
Weber, 544 U.S. 269 (2005). Id. Respondent
contends that a stay is not warranted (Opp. at 1-2).
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.
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
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, 5401 F.2d 1019, 1024 (9th Cir. 2008).
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.
Martinez v. Ryan, 132 U.S. 1309, 1315 (2012)
(holding that ineffective assistance of post-conviction
counsel may constitute cause for overcoming procedural
default). The court of appeals 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