United States District Court, E.D. California
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding through counsel, filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, and paid the filing fee. Petitioner consented to
proceed before the undersigned for all purposes. See
28 U.S.C. § 636(c). Petitioner filed a motion for stay
and abeyance of this action under Rhines v. Weber,
544 U.S. 269 (2005) (“Rhines”). (ECF No.
2.) As set forth below, petitioner's motion is granted.
concedes that he has not exhausted the claims raised in the
instant petition. (ECF No. 1-1 at 12.) Petitioner argues
there is good cause for his failure to exhaust because habeas
counsel was not retained until May 18, 2017, and, following
counsel's investigation; “exhaustive review”
of the over 800 page trial record; meetings with multiple
experts regarding complex medical issues, and petitioner;
legal research; and preparation of the habeas petition,
counsel filed the petition on September 11, 2017. (ECF No. 2
at 4.) Moreover, due to California's discretionary
standard in determining the timeliness of a state habeas
petition (In re Clark, 5 Cal.4th 750 (1993)),
petitioner seeks to stay his habeas petition while he
continues to exhaust his claims in state court. Petitioner
argues that this claims are “potentially meritorious,
” as explained in the petition. (ECF No. 2 at 5.)
Petitioner states he has not engaged in any intentional
dilatory litigation tactics, and argues that a stay will
preserve this court's judicial resources, allow the state
court to address the constitutionality of petitioner's
conviction, and prevent piecemeal litigation.
federal district court may not address the merits of a
petition for writ of habeas corpus unless the petitioner has
exhausted state court remedies with respect to each of his
federal claims. Rose v. Lundy, 455 U.S. 509 (1982);
28 U.S.C. § 2254(b)(1). Under Rhines, a
district court may stay a mixed petition if the following
conditions are met: (1) “the petitioner had good cause
for his failure to exhaust, ” (2) “his
unexhausted claims are potentially meritorious, ” and
(3) “there is no indication that the petitioner engaged
in intentionally dilatory litigation tactics.”
Id., 544 U.S. at 278. The Supreme Court made clear that
this option “should be available only in limited
circumstances.” Id. at 277. Moreover, a stay
under Rhines may not be indefinite; reasonable time
limits must be imposed on a petitioner's return to state
court. Id. at 277-78. District courts are also
permitted to stay fully unexhausted petitions under
Rhines. Mena v. Long, 813 F.3d 907, 912
(9th Cir. 2016).
“The case law concerning what constitutes ‘good
cause' under Rhines has not been developed in
great detail.” Dixon v. Baker, 847 F.3d 714,
720 (9th Cir. 2017) (citing Blake v. Baker, 745 F.3d
977, 980 (9th Cir. 2014) (“There is little authority on
what constitutes good cause to excuse a petitioner's
failure to exhaust.”)) The Supreme Court has addressed
the meaning of good cause only once, stating in dicta that
“[a] petitioner's reasonable confusion about
whether a state filing would be timely will ordinarily
constitute ‘good cause'” to excuse his
failure to exhaust. Pace v. DiGuglielmo, 544 U.S.
408, 416 (2005) (citing Rhines, 544 U.S. at 278).
Ninth Circuit has provided limited guidance. Under Ninth
Circuit law, the “good cause” test is less
stringent than an ‘extraordinary circumstances'
standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th
Cir. 2005). However, a petitioner cannot establish good cause
simply by alleging that he was “under the
impression” that his claim was exhausted. Wooten v.
Kirkland, 540 F.3d 1019 (9th Cir. 2008). Ineffective
assistance of post-conviction counsel can constitute good
cause for a Rhines stay. Blake v. Baker,
745 F.3d at 983. The Ninth Circuit concluded that the
Rhines standard for cause based on ineffective
assistance of counsel “cannot be any more
demanding” than the cause standard required to excuse
the procedural default of a habeas claim, as set forth in
Martinez v. Ryan, 132 S.Ct. 1309 (2012).
Blake, 745 F.3d at 983-84. Recently, the Ninth
Circuit held that a total absence of post-conviction counsel
will constitute good cause. Dixon, 847 F.3d at 721.
following denial of his petition for review, petitioner was
without counsel until May of 2016, when he retained counsel
to represent him during his collateral challenges. Further,
the expert evidence suggests the case was complex, and the
alleged ineffective assistance of both trial and appellate
counsel, all demonstrate good cause for his failure to
earlier file his petition.
Potentially Meritorious Claims
federal habeas petitioner must establish that at least one of
his unexhausted claims is not ‘plainly meritless'
in order to obtain a stay under Rhines.”
Dixon, 847 F.3d at 722 (quoting Rhines, 544
U.S. at 277). A claim is “plainly meritless” only
if “it is perfectly clear that the petitioner has no
hope of prevailing.” Cassett v. Stewart, 406
F.3d 614, 624 (9th Cir. 2005). A petitioner satisfies this
showing by presenting a “colorable” claim.
Dixon, 847 F.3d at 722; Lucas v. Davis,
2017 WL 1807907, at *9 (S.D. Cal. ...