United States District Court, C.D. California
ORDER ACCEPTING IN PART REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
OTIS D WRIGHT, II UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 636, the Court has reviewed: (1) the
Motion to Stay the action ("Motion to Stay"), [Dkt.
No. 74], corresponding opposition, and reply, [Dkt. Nos.
79-80]; (2) the Motion for Leave to Amend Habeas Petition
("Motion to Amend"), proposed Second Amended
Petition, [Dkt. Nos. 88-89], corresponding opposition, and
reply, [Dkt. Nos. 98, 103]; (3) the Magistrate Judge's
Report and Recommendation ("R&R"), [Dkt. No.
109]; (4) Petitioner's Objections to the R&R
("Objections"), [Dkt. No. 110]; (5)
Respondent's Response to the Objections, [Dkt. No. 112];
and (6) the remaining record, and has made a de novo
case has endured a tortured procedural history, summarized in
detail in the R&R. [Dkt. No. 109 at 1-5.] As relevant
here, the proceedings have culminated in the Magistrate
Judge's recommendation, inter alia, to deny
Petitioner's request for a stay under Rhines v.
Weber, 544 U.S. 269 (2005), but grant a stay under
Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). [Dkt.
No. 109 at 6-11.]
Objections generally reiterate arguments made in the motions
and corresponding replies to oppositions, and lack merit for
the reasons set forth in the R&R. There is one issue,
however, that warrants brief discussion.
Objections, Petitioner contends he is entitled to a
Rhines stay under the Ninth Circuit's recent
decision in Dixon v. Baker, 847 F.3d 714 (9th Cir.
2017). Specifically, Petitioner contends he
is entitled to the stay because he lacked the assistance of
counsel during initial state habeas proceedings. [Dkt. No.
110 at 1-3 (quoting Dixon, 847 F.3d at 722 ("We
recognize, of course, that many state postconviction
proceedings are conducted pro se. For this group of federal
habeas petitioners, the first element of the Rhines
test can easily be established to the extent that they were
Response to the Objections, Respondent acknowledges that the
Court is bound by this Ninth Circuit precedent. [Dkt. No. 116
at 5.] Respondent nonetheless contends that Dixon
does not compel a Rhines stay because, even if good
cause is shown, a stay may still appropriately be denied
because petitioner's claims are plainly meritless.
[Id. at 6-9.]
noted in the R&R's reasoning for granting a stay
under Kelly, Petitioner has alleged detailed factual
and legal mental health claims that are intertwined with his
claim that the federal statute of limitations period should
be equitably tolled based on his mental impairments. [Dkt.
No. 109 at 9.] The R&R also noted that Petitioner's
retained experts are still conducting assessments of
Petitioner's mental health, which counsel for Petitioner
has confirmed in the May 1, 2017 status report. [Id.
at 9 n.5; Dkt. No. 118.] Further, Petitioner's first
round of counseled state habeas claims has not yet been
presented to the state courts. 
given that Petitioner's mental health claims are still
evolving, it is difficult - if not impossible - for the Court
to decide whether a Rhines stay should be granted.
Indeed, as Dixon recognized, "good cause"
is only the "first element of the Rhines
test." See Dixon, 847 F.3d at 722. Petitioner
must still establish "claim plausibility, "
i.e. that his unexhausted claims are not
"plainly meritless" in order to obtain a stay under
Rhines. See Dixon, 847 F.3d at 722. Because
Petitioner's claims have not been finalized, even before
the state courts, this Court cannot determine their merits at
this juncture. See Rhines, 544 U.S. at 278
("[I]t likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition
if the petitioner['s] . . . unexhausted claims are
potentially meritorious"); Estrada v. Strainer,
2015 WL 1916549, at *9 (E.D. Cal. Apr. 27, 2015) (noting
that, under certain circumstances and at an early stage of
proceedings, it would be premature to find a claim plainly
meritless under Rhines); Seriales v. Harrington,
2009 WL 2601252, at *2 (E.D. Cal. Aug. 21, 2009) (denying
Rhines stay without prejudice because court could
not determine "at this juncture" whether proposed
claims were plainly meritless).
on the foregoing, due to the recent change in the law and the
Court's inability, at this time, to decide the
plausibility of Petitioner's proposed claims while they
are being forged, the Court declines to accept the R&R to
the extent it denied a Rhines stay based solely on
the lack of a showing of good cause. Rather, the Court denies
the request without prejudice to refiling an amended
motion for stay after finalization of the claims, exhaustion
in the state courts, and refiling of a proposed amended
petition in this Court. See Seriales,
2009 WL 2601252 at *2; Lobretto v. Sisto, 2008 WL
345907, at *2 (E.D. Cal. Feb. 6, 2008) (allowing petitioner
to file a later, amended Rhines stay request because
the court could not determine whether claims were
"plainly meritless"). If any such Rhines
stay is sought, the Court will consider it nunc pro tunc.
Cf. Kelly, 315 F.3d at 1071 (stay may be vacated
nunc pro tunc as of the date the district court
enters it); see Watson v. Cate, 2011 WL 6202788, at
*8 (S.D. Cal. Dec. 6, 2011) (noting grant of stay nunc
pro tunc to earlier date), aff'd, 526
F.App'x 779 (9th Cir. 2013), cert, denied, 134
S.Ct. 1549 (2014).
meantime, the Court accepts the recommendation to grant a
stay under Kelly. [Dkt. No. 109 at 8-11.]
has not shown in his Objections that the other aspects of the
R&R warrant discussion.
IT IS ORDERED THAT:
R&R is approved and accepted, except as to the discussion
denying a Rhines stay for lack of a showing of good
Petitioner's request for a Rhines stay is denied