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Martinez v. Montgomery

United States District Court, E.D. California

November 7, 2017




         I. Introduction

         Petitioner, 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.

         II. Petitioner's Arguments

         Petitioner 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.

         III. Applicable Law

         A 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.[1] 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).

         IV. Discussion

         A. Good Cause

          “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).

         The 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.

         Here, 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.

         B. Potentially Meritorious Claims

         “A 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. ...

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