United States District Court, E.D. California
STEPHEN E. PUTNAM, Petitioner,
MARSHALL HOPPER, Chief Probation Officer, Placer County Probation Department, Respondent. 
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is in the custody of the California Department of Corrections
and Rehabilitation, and is proceeding through counsel in this
petition for writ of habeas corpus under 28 U.S.C. §
2254. Petitioner concedes that none of his four claims have
been presented to the California Supreme Court and are
therefore unexhausted. ECF No. 1, ¶ 11. He requests that
this action be stayed pursuant to Rhines v. Weber,
544 U.S. 269 (2005). Id. ¶ 12. Respondent
opposes a stay and asks that the petition be dismissed
without prejudice as unexhausted. ECF No. 12. Petitioner
filed an opposition and respondent filed a reply. ECF Nos.
22, 23. Because petitioner has failed to show good cause for
his failure to exhaust his claims before filing them in this
court, his motion to stay should be denied and
respondent's motion to dismiss the unexhausted petition
should be granted.
March 21, 2013, petitioner was convicted of pimping and
pandering. Resp't's Lod. Docs. 2, 6. He was sentenced
to a determinate state prison term of seven years, four
months. Resp't's Lod. Doc. 2. On April 20, 2016, the
state appellate court affirmed the judgment. Resp't's
Lod. Doc. 3.
12, 2016, petitioner wrote to his appellate counsel, Richard
R. Dudek, to find out if he would be filing an appeal in the
California Supreme Court. ECF No. 22, Ex B at
On May 19, 2016, Dudek responded by letter that he would
“NOT be filing an appeal with the Supreme
Court, ” that he would no longer be representing
petitioner, and that petitioner was “currently without
legal representation.” Resp't's Lod. Doc. 5. On
May 30, 2016, petitioner's deadline for filing a petition
for review in the California Supreme Court expired.
See Cal. Rules of Court 8.366 & 8.500. He did
not file a petition for review.
8, 2016, through attorney Timothy Woodall, petitioner filed a
petition for writ of habeas corpus in the state superior
court. Resp't's Lod. Doc. 6. The superior court
denied the petition the following day. Id.
August 29, 2016, petitioner signed a pro se petition for writ
of habeas corpus that was filed in the state superior court
on September 30, 2016. Resp't's Lod. Doc. 7. In this
petition, petitioner raised the same four claims as the
instant petition. See Id. On December 13, 2016, the
state superior court denied relief. Id.
April 20, 2017, petitioner filed his petition in this action.
ECF No. 1. He concedes that his claims have not been
presented to the California Supreme Court but asks that his
petition be stayed because (1) appellate counsel unexpectedly
abandoned him and did not provide him with copies of trial
transcripts until mid-July 2016; (2) given the uncertainty in
California's habeas procedures, there was no guarantee
that filing a petition in the California Supreme Court would
have been deemed timely and thus tolled the federal
limitations period; (3) an ongoing investigation into his
case may result in new evidence, requiring that he delay
filing in the California Supreme Court, so as to avoid the
filing of improper piecemeal habeas petitions in that court;
and (4) he has filed a “protective petition” in
accordance with Pace v. DiGuglielmo, 544 U.S. 408,
416 (2005). See ECF No. 22.
exhaustion of state court remedies is a prerequisite to the
granting of a petition for writ of habeas corpus. 28 U.S.C.
§ 2254(b)(1). “Under the exhaustion requirement, a
habeas petitioner challenging a state conviction must first
attempt to present his claim in state court.”
Harrington v. Richter, 562 U.S. 86, 103 (2011);
see also O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (“the exhaustion doctrine is designed to
give the state courts a full and fair opportunity to resolve
federal constitutional claims before those claims are
presented to the federal courts”). A petitioner
satisfies the exhaustion requirement by providing the highest
state court with a full and fair opportunity to consider all
claims before presenting them to the federal court.
Picard v. Connor, 404 U.S. 270, 276 (1971);
Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.
1985), cert. denied, 478 U.S. 1021 (1986). For a
California prisoner to exhaust, he must present his claims to
the California Supreme Court on appeal in a petition for
review or on post-conviction in a petition for a writ of
habeas corpus. See Gatlin v. Madding, 189 F.3d 882,
888 (9th Cir. 1999); Harris v. Superior Court of
California, 500 F.2d 1124, 1125 (1974).
“limited circumstances, ” the court may stay a
petition to allow a petitioner the opportunity to present his
unexhausted claims to the state court. Rhines, 544
U.S. at 275-77; see also Mena v. Long, 813 F.3d 907,
910-12 (9th Cir. 2016) (extending the Rhines stay
and abeyance procedure to federal petitions that are fully
unexhausted). Because granting a stay effectively excuses a
petitioner's failure to present his claims first to the
state courts, the stay and abeyance procedure is available
only when: (1) there is “good cause” for the
failure to exhaust; (2) the unexhausted claims are
potentially meritorious; and (3) the petitioner did not
intentionally engage in dilatory litigation tactics.
Rhines, 544 U.S. at 277-78. “[G]ood
cause turns on whether the petitioner can set forth a
reasonable excuse, supported by sufficient evidence, to
justify [his failure to exhaust his claims in state
court].” Blake v. Baker, 745 F.3d 977, 982
(9th Cir. 2014). A “petitioner's reasonable
confusion about whether a state filing would be timely will
ordinarily constitute ‘good cause' for him to file
in federal court.” Pace, 544 U.S. at 416.
Unless a stay is appropriate, an unexhausted petition must be
dismissed. See Mena, 813 F.3d at 908.
offers four reasons for his failure to exhaust his federal
claims in state court before presenting them to this court.
Those reasons are not sufficient to justify his failure to
petitioner argues that the unexpected abandonment by his
appellate counsel in May 2016, and subsequent delay in
providing petitioner with copies of his voluminous trial
transcripts, justifies his failure to exhaust. ECF No. 1 at
5. These excuses, however, fail to reasonably explain why
petitioner could not have presented his claims to the
California Supreme Court prior to commencing this action.
See Hernandez v. Sullivan, 397 F.Supp.2d 1205, 1207
(C.D. Cal. 2005) (no “good cause” where
“[a]ppellate counsel's alleged failure did nothing
to prevent Petitioner from seeking state habeas relief for
the unexhausted claims.”). By June 8, 2016, petitioner
had already retained new post-conviction counsel and had
filed a petition for writ of habeas corpus in the state
superior court. By mid-July 2016, petitioner had personally
obtained copies of his trial transcripts. ECF No. 22 at 2.
And by August 29, 2016, petitioner was aware of the factual
basis for each of the claims asserted in this action.
See Resp't's Lod. Doc. 7 (petitioner's
pro se habeas petition filed in state superior court);
see also Reyes v. Soto, No. CV 15-8566, 2016 U.S.
Dist. LEXIS 125901, at *17-18 (C.D. Cal. Aug. 1, 2016) (no
good cause for failure to exhaust where petitioner knew
factual basis for his unexhausted claims long before he filed
his federal petition). Under these circumstances, petitioner
was able to present his claims in a state habeas petition to
the California Supreme Court, but without explanation,
presented them only to the state superior court. See Meza
v. Barretto, No. CV 16-05867-FMO (KES), 2017 U.S. Dist.
LEXIS 27242, at *15 (C.D. Cal. Jan. 17, 2017) (no good cause
for failure to exhaust where ...