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Mills v. Davis

United States District Court, E.D. California

November 4, 2019

JEFFERY JON MILLS, Petitioner,
v.
RONALD DAVIS, Respondent.

          FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Petitioner is a condemned state prisoner proceeding on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before the court is petitioner's motion to stay these proceedings and hold them in abeyance pending the California Supreme Court's resolution of petitioner's state habeas corpus petition. For the reasons set forth below, this court will recommend petitioner's motion be granted and this case be stayed.

         BACKGROUND

         In 1996, petitioner was convicted in Sacramento County Superior Court of first degree murder. He was sentenced to death. On March 1, 2010, the California Supreme Court affirmed the judgment and sentence. People v. Mills, 48 Cal.4th 158 (2010). The United States Supreme Court denied certiorari on November 1, 2010. Mills v. California, 562 U.S. 1006 (2010).

         On November 29, 2010, petitioner filed a habeas petition with the California Supreme Court. In re Mills, No. S188459 (see ECF No. 22-2). On April 22, 2013, he filed an amended petition in that action. (See ECF No. 22-4.) The California Supreme Court denied the amended petition on October 11, 2017. (See ECF No. 22-22.)

         Petitioner initiated this action on October 20, 2017 by filing applications for a stay of execution and for the appointment of counsel. (ECF No. 1.) On January 9, 2018, the court appointed Federal Defender Services of Idaho as counsel for petitioner. (ECF No. 8.) On June 7, 2018, respondent lodged an electronic copy of the state court record. (ECF Nos. 19-22.)

         On April 12, 2019, petitioner filed a first amended petition. (ECF No. 32.) In a joint statement filed June 13, 2019, the parties identified as unexhausted numerous issues in the first amended petition. (ECF No. 37 at 2-5.) On August 1, 2019, petitioner filed a motion to stay these proceedings pending the state court's resolution of a petition for writ of habeas corpus on his unexhausted claims. (ECF No. 39.) Respondent opposes the motion (ECF No. 40) and petitioner filed a reply (ECF No. 41). This court finds oral argument on the motion unnecessary.

         MOTION FOR STAY/ABEYANCE

         I. General Legal Standards

         It is well established that a federal court may not “adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims.” Rhines v. Weber, 544 U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). Historically, federal courts dismissed mixed petitions. See Rose, 455 U.S. at 522; Rhines, 544 U.S. at 274. In 2005, the Supreme Court considered the propriety of staying a mixed petition. In Rhines, the Court held that stay and abeyance of a mixed petition is available in “limited circumstances” when “the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.” 544 U.S. at 277. Even if a court finds good cause, however, a stay is inappropriate if the unexhausted claims are “plainly meritless” or petitioner has engaged in “abusive litigation tactics or intentional delay.” Id. at 278. Under Rhines, then, a federal court may stay a petition containing exhausted and unexhausted claims 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. Each of the Rhines factors is addressed below.

         II. Analysis

         A. Good Cause

         1. Legal Standards

         “Good cause” under Rhines is not clearly defined. The Supreme Court has explained that in order to promote the Anti-terrorism and Effective Death Penalty Act's (“AEDPA”) twin goals of encouraging the finality of state judgments and reducing delays in federal habeas review, “stay and abeyance should be available only in limited circumstances.” Rhines, 544 U.S. at 277. The Ninth Circuit has provided little guidance beyond holding that the test is less stringent than an “extraordinary circumstances” standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). In 2008, the Ninth Circuit warned that the good cause standard should not be so easy to meet that it renders “stay-and-abey orders routine” and runs “afoul of Rhines and its instruction that district courts should only stay mixed petitions in ‘limited ...


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