United States District Court, S.D. California
REPORT AND RECOMMENDATION ON THE WARDEN'S MOTION
TO DISMISS HABEAS PETITION AND PETITIONER AGUON'S REQUEST
FOR A STAY
Andrew G. Schopler United States Magistrate Judge
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.
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. 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.)
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).
requests a stay, so this Court must consider that option
before turning to the warden's motion to dismiss.
Good Cause for Failure to Exhaust
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.
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.
. Before he could prepare his petition, he
spent months “dealing with” the State Bar Office
and his ...