United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
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.
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.
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.)
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.
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.
General Legal Standards
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.
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