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Aguon v. Montgomery

United States District Court, S.D. California

June 12, 2017

Michael Aguon, Petitioner,
v.
Warren L. Montgomery, Warden, Respondent.

          REPORT AND RECOMMENDATION ON THE WARDEN'S MOTION TO DISMISS HABEAS PETITION AND PETITIONER AGUON'S REQUEST FOR A STAY

          Hon. Andrew G. Schopler United States Magistrate Judge

         The habeas corpus petition here includes legal claims that cannot be heard in federal court, because the state courts have never ruled on them. So, it must be stayed or dismissed.

         I. BACKGROUND

         Petitioner Michael Aguon was convicted of first-degree murder. On direct appeal, an intermediate court affirmed the judgment, and the California Supreme Court declined review on June 24, 2015. (ECF No. 11-3.) Aguon's one-year period for filing a federal habeas petition started 90 days later, on September 22, 2015.[1] On September 21, 2016- the eve of that deadline-Aguon handed his federal habeas application to correctional officers for mailing. (ECF No. 1, at 15.) That application contains a prosecutorial misconduct claim that the state courts rejected during his direct appeal, as well as four new claims never adjudicated in state court. (ECF Nos. 1, 11-1, 11-3.)

         II. DISCUSSION

         Generally, a federal court must “dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts.” Rose v. Lundy, 455 U.S. 509, 510 (1982); see also 28 U.S.C. § 2254(b)(1)(A). But the court may stay the petition while the prisoner exhausts state court remedies. Such a stay should be granted when: (1) “the petitioner has good cause for the failure to exhaust;” (2) the “unexhausted claims are potentially meritorious” (or at least not “plainly meritless”); and (3) “there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 277-78 (2005).

         Aguon requests a stay, so this Court must consider that option before turning to the warden's motion to dismiss.

         A. Good Cause for Failure to Exhaust

         “There is little authority on what constitutes good cause to excuse a petitioner's failure to exhaust.” Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). But the outer limits are well-established. “While a bald assertion cannot amount to a showing of good cause, a reasonable excuse, supported by evidence to justify a petitioner's failure to exhaust, will.” Id. at 982.

         Aguon goes beyond bald assertions, offering specific reasons for failing to first exhaust his state court remedies:

. He was saddled with an ineffective appellate attorney who failed to raise the four unexhausted claims on direct appeal. (ECF No. 1, at 12.)
. He is not “knowledgeable in the law” himself. (ECF No. 12, at 3.)
. He was “unable to hire a professional attorney, ” so must represent himself. (Id.)
. Before he could prepare his petition, he spent months “dealing with” the State Bar Office and his ...

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