Houston v. Davis

          ORDER GRANTING MOTION TO STAY AND ABEY

          WILLIAM ALSUP United States District Judge

         INTRODUCTION

         Petitioner, 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.

         BACKGROUND

         In 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, 1993.

         The 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).

         While 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).

         Petitioner 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.

         Petitioner 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).

         LEGAL STANDARD

         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.

         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, 5401 F.2d 1019, 1024 (9th Cir. 2008).

         Most 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 ...