United States District Court, E.D. California
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.
is a state prisoner, proceeding pro se and in forma pauperis,
with a petition for writ of habeas corpus under 28 U.S.C.
§ 2254. Petitioner filed a motion for stay and abeyance
of this action under Rhines v. Weber, 544 U.S. 269
(2005) (“Rhines”). As set forth below,
petitioner's motion is granted.
states that he is in the process of exhausting the instant
claims in the California Supreme Court; his petition was
filed on January 29, 2018, Case No. S246809. Petitioner seeks
to stay his federal habeas petition until the California
Supreme Court issues its decision, and appears to contend
that the pendency of the state petition constitutes good
cause under Rhines. (ECF No. 11 at 2.) Petitioner
argues that all of his claims are meritorious, and denies he
has engaged in any dilatory litigation tactics.
exhaustion of state court remedies requires that each federal
claim be presented to the state's highest court. 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.
Rhines stay procedure may be applied both to
petitions which contain only unexhausted claims and to
petitions that are “mixed” -- that is, petitions
containing both exhausted and unexhausted claims. See
Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016).
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.
review of the California Supreme Court website confirms that
petitioner is proceeding pro se in his state collateral
challenge. Under Dixon, the absence of
post-conviction counsel is sufficient to establish good cause
for a stay under Rhines. See Dixon, 847
F.3d at 714, 721.