United States District Court, N.D. California, Eureka Division
ORDER GRANTING MOTION FOR STAY AND ABEYANCE RE: DKT.
J. VADAS United States Magistrate Judge.
who has consented to magistrate judge jurisdiction, has filed
a motion to stay this petition to exhaust an unexhausted
claim not contained in the present petition. (Doc. 2.)
Petitioner states that since his case became final, the
California Supreme Court decided People v. Sanchez,
63 Cal.4th 665, wherein the court held that where
“case-specific” statements were related by a
prosecution's gang expert, presenting them as true
statements of facts without independent proof, they would be
treated as hearsay requiring compliance with state evidence
rules and if the statements were made to the police, they
would also be "testimonial hearsay" subject to the
Sixth Amendment confrontation clause. Sanchez
defined case-specific facts as “those relating to the
particular events and participants alleged to have been
involved in the case being tried.” (Id. at p.
claims that here, prosecution expert Chris Gridley testified
extensively regarding case specific hearsay, including
petitioner's prior juvenile adjudication for attempted
murder. Petitioner contends that the admission of this
testimony violated his Sixth Amendment right to counsel.
Petitioner explains that because Sanchez was decided
after petitioner's case became final, the issue was not
previously raised in state court.
United States Supreme Court has held that a district court
may stay mixed habeas petitions to allow the petitioner to
exhaust in state court. Rhines v. Weber, 544 U.S.
269, 277-78 (2005). A district court also has the discretion
to stay a petition containing only unexhausted claims under
the circumstances set forth in Rhines. Mena v. Long,
813 F.3d 907, 909 (9th Cir. 2016). Because the use of a stay
and abeyance procedure has the potential to undermine these
dual purposes of AEDPA, its use is only appropriate where the
district court has first determined that there was good cause
for the petitioner's failure to exhaust the claims in
state court and that the claims are potentially meritorious.
Id. Moreover, where granting a stay, the district
court must effectuate the timeliness concerns in AEDPA by
placing “reasonable limits on a petitioner's trip
to state court and back.” Id. at 278.2
requires a showing of “good cause.” Dixon v.
Baker, No. 14-16644, slip op. at 10 (9th Cir. Feb. 2,
2017). While this is a lesser standard than
“extraordinary circumstances, ” a petitioner
“must do more than simply assert that he was
‘under the impression' that his claim was
exhausted.” Id. (quoting Wooten v.
Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008)).
“The caselaw concerning what constitutes ‘good
cause' under Rhines has not been developed in
great detail.” Id. “The Supreme Court
has addressed the issue only once, when it noted 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.'” Id. (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005) (citing
Rhines, 544 U.S. at 278)). “Other circuits
have found good cause when, for example, the prosecution has
wrongfully withheld information.” Id. (citing
Jalowiec v. Bradshaw, 657 F.3d 293, 304-05 (6th Cir.
petitioner has been found to demonstrate ‘good
cause' where he meets the good-cause standard announced
in Martinez v. Ryan, 132 S.Ct. 1309, 1320
(2012).” Blake v. Baker, 745 F.3d 977, 984
(9th Cir. 2014). Therefore, good cause under Rhines
when based on ineffective assistance of counsel is not any
more demanding than the cause standard articulated in
Martinez, to excuse state procedural default. Blake,
745 F.3d at 984. An assertion of good cause turns on whether
the petitioner can set forth a reasonable excuse supported by
sufficient evidence to justify the failure to exhaust.
See id. at 983-84 (reversing denial of stay when
petitioner supported his good cause argument with evidence
including a neuropsychological and psychological evaluation
and many declarations); see also Wooten, 540 F.3d at
1024 (upholding denial of stay because petitioner's
incorrect “impression” that counsel had raised
claims to the California Supreme Court on direct appeal did
not establish good cause under Rhines for failure to
exhaust claims earlier.)
the court finds that Petitioner has demonstrated good cause
for failure to exhaust his claim before filing this petition
because Sanchez, the case on which he relies, was
decided after Petitioner's case became final. The court
further finds that Petitioner's claim is potentially
Petitioner's motion for stay and abeyance is HEREBY
GRANTED. Petitioner SHALL FILE his unexhausted claim in state
court within thirty days, and file a notice in this court
within thirty days of a final ...