United States District Court, E.D. California
GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE
a former state prisoner proceeding in pro se, has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner has not, however filed an in forma
pauperis affidavit or paid the required filing fee ($5.00).
See 28 U.S.C. §§ 1914(a); 1915(a).
Petitioner will be provided the opportunity to either submit
the appropriate affidavit in support of a request to proceed
in forma pauperis or submit the appropriate filing fee.
present form, the petition appears to include only
unexhausted claims. When asked whether the grounds presented
at the Third Appellate District, Court of Appeal and
California Supreme Court were the same grounds as those
raised in the present federal petition, petitioner answered
“No.” ECF No. 1 at 2-3 ¶H. Claims presented
in a federal habeas petition must be first presented to the
California Supreme Court either by way of petitioning for
direct review after an appeal has been denied in the
California Court of Appeal, or by way of a habeas corpus
petition presented to the state supreme court. Based on
petitioner's assertions, petitioner has not satisfied
these exhaustion requirements.
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). If exhaustion is to be waived, it must be
waived explicitly by respondent's counsel. 28 U.S.C.
§ 2254(b)(3). A waiver of exhaustion, thus, may not be
implied or inferred. 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.
reviewing the petition for habeas corpus, the court finds
that petitioner has failed to exhaust state court remedies.
The claims have not been presented to the California Supreme
Court. However, “a district court has the discretion to
stay and hold in abeyance fully unexhausted petitioners under
the circumstances set forth in Rhines.”
Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016)
(citing Rhines v. Weber, 544 U.S. 269 (2005)).
Accordingly, the undersigned will provide petitioner an
opportunity to move for a stay under Mena and
district court may properly stay a habeas petition and hold
it in abeyance pursuant to Rhines v. Weber, 544 U.S.
269 (2005). See King v. Ryan, 564 F.3d 1133, 1135
(9th Cir. 2009). Under Rhines, a district court may
stay a mixed petition to allow a petitioner to present an
unexhausted claim to the state courts. Rhines, 544
U.S. at 277. Assuming the petition itself has been timely
filed, such a stay “eliminates entirely any limitations
issue with regard to the originally unexhausted claims, as
the claims remain pending in federal court[.]”
King, 564 F.3d at 1140. A petitioner qualifies for a
stay under Rhines so long as (1) good cause is shown
for a failure to have first exhausted the claims in state
court; (2) the claim or claims at issue potentially have
merit; and (3) there has been no indication that petitioner
has been intentionally dilatory in pursuing the litigation.
Rhines, 544 U.S. at 277-78. Although good cause does
not require “extraordinary circumstances, ”
courts must “interpret whether a petitioner has
‘good cause' for a failure to exhaust in light of
the Supreme Court's instruction in Rhines that
the district court should only stay mixed petitions in
‘limited circumstances.'” Wooten v.
Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (quoting
Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir.
2005)). The Ninth Circuit has further rejected a “broad
interpretation of ‘good cause.'”
Wooten, 540 F.3d at 1024. Instead, “good cause
turns on whether the petitioner can set forth a reasonable
excuse, supported by sufficient evidence, to justify that
failure.” Blake v. Baker, 745 F.3d 977, 982
(9th Cir. 2014).
to Rhines, petitioner will be granted an opportunity
to file a motion for stay and abeyance in which he sets forth
good cause for failure to exhaust his claims prior to filing
his current federal habeas petition; that is unexhausted
claims are meritorious; and that he has not been dilatory in
proceeding on his claims.
IT IS HEREBY ORDERED that:
Petitioner shall submit, within thirty days from the date of
this order, an affidavit in support of his request to proceed
in forma pauperis or the appropriate filing fee;
petitioner's failure to comply with this order will
result in the dismissal of this action;
Clerk of the Court is directed to send petitioner a copy of
the in forma pauperis form used by this district for pro se
Petitioner shall have thirty days to file a motion for stay
and abeyance. Petitioner is warned that failure to file a
motion for stay and abeyance within the court's deadline
will result in a ...