United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO GRANT RHINES STAY
ORDER DISCHARGING ORDER TO SHOW CAUSE (ECF NOS. 7,
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
challenges his 2014 convictions sustained in the Kern County
Superior Court for second-degree murder and discharge of
firearm causing death. Petitioner was sentenced to an
imprisonment term of forty years to life. (ECF No. 1 at
On March 28, 2018, the California Court of Appeal, Fifth
Appellate District affirmed the convictions, vacated the
sentence, and remanded the matter. (Id. at 2). On
June 13, 2018, the California Supreme Court denied the
petition for review. (Id. at 2, 8).
September 3, 2019, Petitioner filed a federal petition for
writ of habeas corpus in this Court. Therein, Petitioner
acknowledges that the claims that he raises in Ground Five of
the petition currently are pending in a collateral challenge
in the California Court of Appeal. (ECF No. 1 at 5). On
October 4, 2019, the Court ordered Petitioner to show cause
why the petition should not be dismissed for failure to
exhaust state court remedies. (ECF No. 7). On October 24,
2019, Petitioner filed his response. (ECF No. 8).
petitioner in state custody who is proceeding with a petition
for writ of habeas corpus must exhaust state judicial
remedies. 28 U.S.C. § 2254(b)(1). The exhaustion
doctrine is based on comity to the state court and gives the
state court the initial opportunity to correct the
state's alleged constitutional deprivations. Coleman
v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
Lundy, 455 U.S. 509, 518 (1982). A petitioner can
satisfy the exhaustion requirement by providing the highest
state court with a full and fair opportunity to consider each
claim before presenting it to the federal court.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Picard v. Connor, 404 U.S. 270, 276 (1971).
response to the order to show cause, Petitioner acknowledges
that he filed a mixed petition containing exhausted and
unexhausted claims. (ECF No. 8 at 1). Petitioner raises the
following question: “Does the fact that petitioner was
back before the Sentencing Court on Remand after the State
Supreme Court denied review count toward tolling the AEDPA
time constraint's [sic] before filing a first
collateral petition in the state court's after the remand
issue is concluded?” (ECF No. 8 at 2). If “that
remand time” is tolled, Petitioner “would have no
objection” to dismissing the case without prejudice.
(Id.). However, if “that remand time” is
not tolled, Petitioner requests the Court to stay the
petition and hold it in abeyance pursuant to Rhines v.
Weber, 544 U.S. 269 (2005). (ECF No. 8 at 2).
Court does not have the complete state court record and thus,
the Court cannot rule definitively on the issue of tolling.
Accordingly, the Court will proceed to determine whether a
stay under Rhines is warranted. Given “that a
motion to stay and abey section 2254 proceedings is generally
(but not always) dispositive of the unexhausted claims,
” the undersigned shall submit findings and
recommendation on the motion. Mitchell v.
Valenzuela, 791 F.3d 1166, 1171, 1173-74 (9th Cir.
Rhines v. Weber, “stay and abeyance” is
available only when: (1) there is “good cause”
for the failure to exhaust; (2) the unexhausted claims are
not “plainly meritless”; and (3) the petitioner
did not intentionally engage in dilatory litigation tactics.
544 U.S. at 277-78. “There is little authority on what
constitutes good cause to excuse a petitioner's failure
to exhaust” under Rhines. Blake v.
Baker, 745 F.3d 977, 980 (9th Cir. 2014). “The
Supreme Court has addressed the issue only once, when it
noted that a ‘petitioner's reasonable confusion
about whether a state filing would be timely will ordinarily
constitute ‘good cause' for him to file in federal
court.'” Id. (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005)). 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'”
and AEDPA's goals “to encourage the finality of
sentences and to encourage petitioners to exhaust their
claims in state court before filing in federal court.”
Wooten v. Kirkland, 540 F.3d 1019, 1023-24 (9th Cir.
2008) (citations omitted).
Petitioner states that his appellate attorney held onto
Petitioner's records until Petitioner questioned the
attorney about the documents during preparation of his
collateral challenge. Petitioner prepared the state collateral
challenge without the benefit of those records “because
of the possible time constraint issues.” (ECF No. 8 at
1-2). Given Petitioner's concerns of “the possible
time constraint issues” regarding his state collateral
challenge, Petitioner has satisfied Rhines's
good cause requirement. See Pace, 544 U.S. at 416
(“A petitioner's reasonable confusion about whether
a state filing would be timely will ordinarily constitute
‘good cause' for him to file in federal
federal habeas petitioner must establish that at least one of
his unexhausted claims is not ‘plainly meritless'
in order to obtain a stay under Rhines.”
Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017).
“In determining whether a claim is ‘plainly
meritless,' principles of comity and federalism demand
that the federal court refrain from ruling on the merits of
the claim unless ‘it is perfectly clear that the
petitioner has no hope of prevailing.'”
Id. (quoting Cassett v. Stewart, 406 F.3d
614, 624 (9th Cir. 2005)).
claims Petitioner raises in Ground Five of the petition are
unexhausted. In Ground Five, Petitioner asserts: (1)
ineffective assistance of trial and appellate counsel on
various grounds; (2) denial of his right to a fair trial; and
(3) abuse of discretion of the sentencing court in not
striking a firearm enhancement pursuant to SB620 on remand.
(ECF No. 1 at 7). At least one of Petitioner's
unexhausted claims appears on its face to not be
“plainly meritless.” Petitioner alleges that at
the SB620 hearing, in which the trial court declined to
strike the firearm enhancement on remand, Petitioner asked
trial counsel about filing an appeal. Trial counsel stated
that she would contact Petitioner's appellate counsel,
but she never did and failed to file a notice of appeal. (ECF
No. 1 at 14-15). See Roe v. ...