Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tucker v. Warden Sacramento State Prison

United States District Court, E.D. California

May 10, 2018

GREGORY ALLEN TUCKER, Petitioner,
v.
WARDEN, SACRAMENTO STATE PRISON, Respondent.

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         Petitioner 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.[1]

         II. Petitioner's Arguments

         Petitioner 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.

         III. Applicable Law

         Proper 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.

         The 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).

         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, review of the California Supreme Court website[2] 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.

         B. Potentially ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.