Opinion
ORDER GRANTING STAY AND ABEYANCE
Dean D. Pregerson, United States District Judge.
This matter comes before the Court on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition"). After reviewing the arguments submitted by Petitioner Juan Serna and Respondent Lea Ann Chrones, the Court GRANTS Petitioner's request for a stay and abeyance.
I. BACKGROUND
Petitioner was convicted of two counts of attempted murder, two counts of shooting from a motor vehicle, and one count of illegal possession of a firearm. (P. MPA at 2-3.J Following conviction, Petitioner pursued a direct appeal as well as a state habeas corpus petition; each was denied. He then filed the instant Petition alleging five grounds for relief: (1) insufficiency of the evidence to support a conviction; (2) prosecutorial misconduct; (3) violation of due process because the prosecution's expert testified to a fact in issue; (4) violation of due process and a fair trial because of a misleading jury instruction; and (5) ineffective assistance of appellate counsel. (P. MPA at 11-25.) Respondent moves to dismiss the entire Petition as "mixed," contending Petitioner failed to exhaust his claims for insufficiency of the evidence, prosecutorial misconduct, and improper expert testimony. (MTD.) Petitioner responds that he exhausted the challenged claims in his state habeas petition. (P. Opp. at 3-7.)
Refers to Petitioner's Memorandum of Points and Authorities in support of the Petition.
This case involves two allegations of ineffective assistance of counsel at two different times. In his state habeas petition, Petitioner alleged that his counsel on direct appeal was constitutionally ineffective. (P. Opp. at 13.) The Court refers to Petitioner's counsel on direct appeal as "Direct Appellate Counsel." In the instant Petition, Petitioner alleges his counsel on state habeas review was ineffective. The Court refers to Petitioner's counsel on state habeas review as "State Habeas Counsel".
“'Mixed' petitions are those habeas petitions consisting of both exhausted and unexhausted claims." Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007). Generally, district courts "must dismiss such mixed petitions, leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Id. (internal quotations omitted). Respondent concedes that Petitioner exhausted his claim for violation of due process and a fair trial because of a misleading jury instruction. (MTD. at 6.)
Petitioner's state habeas petition alleged that Direct Appellate Counsel was ineffective because Direct Appellate Counsel failed to raise and exhaust Petitioner's claims for insufficiency of the evidence, prosecutorial misconduct, and improper expert testimony. (SHP at 14.) As such, Petitioner argues that he exhausted his claims for insufficiency of the evidence, prosecutorial misconduct, and improper expert testimony in his state habeas petition because they were the basis of his claim for ineffective assistance of Direct Appellate Counsel. (P. Opp. at 3-7.) In the alternative, Petitioner requests that if the Court finds any of his claims to be unexhausted, the Court grant him a stay and abeyance pursuant to Rhines v. Weber. 544 U.S. 269 (2005). (Id. at 1-2.)
Under Rhines, a district court can stay a "mixed" petition and permit the petitioner to exhaust any unexhausted claims in state court without dismissing the federal petition. See Rhines, 544 U.S. 269.
II. EXHAUSTION
A. Legal Standard
The Petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") because it was filed after AEDPA's effective date, April 24, 1996. See Lindh v. Murphy. 521 U.S. 320, 326-27 (1997). Under AEDPA, " [b]ef ore seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies." Baldwin v. Reese. 541 U.S. 27, 29 (2004); see 28 U.S.C. § 2254(b)(1). To do so, "a petitioner [must] fairly present his federal claims to the highest state court available." Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008)(internal quotations omitted). "Fair presentation requires that the petitioner describe in the state court proceedings both the operative facts and the federal legal theory on which his claim is based so that the state courts have a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim." Id. at 1009 (internal quotations omitted). As such, "for purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief." Id. (internal quotations omitted).
B. Analysis
Petitioner contends that he exhausted his claims for insufficiency of the evidence, prosecutorial misconduct, and improper expert testimony because they formed the basis of his state habeas claim for ineffective assistance of Direct Appellate Counsel. (P. Opp. at 3-7.) Petitioner's argument must fail, however, because the Ninth Circuit has specifically held to the contrary. See Rose v. Palmateer. 395 F.3d 1108 (9th Cir. 2005) . In Rose, the Ninth Circuit held that although an underlying claim might be related to an ineffective assistance of counsel claim, the underlying claim is not exhausted when raised only as one of several issues handled ineffectively by counsel. See id. As such, the Court finds that Petitioner has not exhausted his claims for insufficiency of the evidence, prosecutorial misconduct, and improper expert testimony.
III. STAY AMD ABEYANCE
Because the Court finds that Petitioner has not exhausted his claims for insufficiency of the evidence, prosecutorial misconduct, and improper expert testimony, the Court considers his request to stay this proceeding and permit him to exhaust his claims in state court pursuant to Rhines. The magistrate judge afforded the parties an opportunity to file supplemental briefing on Petitioner's request for a stay and abeyance. While Petitioner filed a brief, Respondent did not file an opposition. Respondent has therefore failed to oppose Petitioner's request for a stay and abeyance. Regardless of Respondent's failure to oppose Petitioner's request, the Court would grant him a stay and abeyance for the reasons that follow.
A. Legal Standard
"[A] district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present unexhausted claims." Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005); see Rhines, 544 U.S. at 275. Courts may grant relief when:
(1) "good cause" exists for the petitioner's failure to exhaust;
(2) the petitioner's unexhausted claims are not "plainly meritless"; and (3) there is no indication that the petitioner engaged in abusive litigation tactics or intentional delay. See Rhines. 544 U.S. at 277-78. When a petitioner satisfies all three elements, "it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition."
Id. at 278.
B. Analysis
Here, elements two and three of the Rhines test are not at issue as the Court finds that Petitioner's claims cannot fairly be deemed "plainly meritless," and there is no indication he has engaged in intentionally dilatory litigation tactics. As such, the Court focuses on element one: whether Petitioner had "good cause" for failing to exhaust his claims. The issue before the Court, whether ineffective assistance of post-conviction counsel is sufficient "good cause" to warrant a stay and abeyance, is undecided in the Ninth Circuit. The Court concludes that it is.
Some courts have analogized the "good cause" needed for a stay and abeyance to the "cause" necessary to excuse procedural default. See e.g. . Hernandez v. Sullivan. 397 F.Supp.2d 1205 (CD. Cal. 2005). In a procedural default, "[a] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." Edwards v. Carpenter. 529 U.S. 446, 451 (2000)(internal quotations omitted). As such, the Supreme Court "require[s] a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim." Id. "Although [the Supreme Court] ha[s] not identified with precision exactly what constitutes 'cause' to excuse a procedural default, [it] ha[s] acknowledged that in certain circumstances counsel's ineffectiveness in failing properly to preserve the claim for review in state court will suffice." Id. Because "[t]he procedural default doctrine and its attendant cause and prejudice standard are grounded in concerns of comity and federalism" however, not just any deficiency in counsel's performance will excuse a procedural default. See id. Counsel's "assistance must have been so ineffective as to violate the Federal Constitution." Id.
The Court finds the stay and abeyance context distinguishable from the procedural default context. The reasoning of the district court on remand from Rhines ("Rhines II") is persuasive:
The failure of a habeas petitioner to meet the State's procedural requirements deprives the state courts of an opportunity to reach the issues in the first instance. But unlike the procedural default situation where a petitioner is barred from presenting his claim to state courts, [petitioner] is not barred from presenting his claim to the state court. Thus, the principles of comity and federalism would be given full recognition if the court allowed [petitioner] to exhaust his unexhausted claims in state court. As a result, the underlying concern of applying the principles of comity and federalism that result in requiring a petitioner to show that the assistance of counsel was so ineffective as to violate the Federal Constitution does not exist, because petitioner can present his claims to state court.
Rhines v. Weber. 408 F.Supp.2d 844, 848-49 (D.S.D. 2005)(remand of Rhines, 544 U.S. 269) In other word, granting Petitioner a stay and abeyance would promote the principles of comity and federalism. A stay and abeyance would allow the state courts to hear Petitioner's claims for insufficiency of the evidence, prosecutorial misconduct, and improper expert testimony in the first instance, and correct any constitutional violations therein, rather than precluding the state courts from having an opportunity to review the claims at all.
Further, Supreme Court precedent suggests "good cause" should be interpreted broadly in the stay and abeyance context. Just one month after Rhines. the Supreme Court considered whether a state post conviction petition that was untimely filed pursuant to state law was "properly filed" under AEDPA, thus entitling the petitioner to statutory tolling. Pace v. DiGuglielmo. 544 U.S. 408, 410 (2005). The Supreme Court held that if a petitioner fails to comply with state filing requirements, he has not "properly filed" under AEDPA and is therefore not entitled to statutory tolling. See id. The petitioner argued that such a result is unfair because a petitioner could make a good faith effort to exhaust his claims only to find out after years of litigation that his state post conviction petition was untimely pursuant to state requirements. Id. at 416. At that point, he contended, his federal petition would be time barred, leaving him no opportunity for federal review. Id. In response, the Supreme Court suggested that "[a] prisoner seeking state post conviction relief might avoid this predicament . . . by filing a 'protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted." Id. The Supreme Court further held 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. The Supreme Court's use of the liberal "reasonable confusion" language as constituting "good cause" just one month after Rhines suggests the Supreme Court intended a broad definition of "good cause" in the stay and abeyance context.
AEDPA has a one year statute of limitations for filing federal habeas petitions. See 28 U.S.C. §2244(d)(1). "That limitation period is tolled, however, while a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Pace. 544 U.S. at 410. As such, a petitioner can pursue state postconviction remedies without running afoul of AEDPA's limitation period.
A stay and abeyance is further distinguishable from a procedural default by the respective relief granted in each context. The relief afforded in the procedural default context is greater than in the stay and abeyance context. A petitioner who successfully alleges ineffective assistance of counsel in the procedural default context is afforded the relief due to a petitioner who has proven his constitutional rights were violated.In contrast, a petitioner who successfully convinces a court to stay and abey federal proceedings by alleging ineffective assistance of counsel is merely given an opportunity to present his claims to the state courts. The burden of showing "good cause" in the stay and abeyance context should therefore be correspondingly less than the burden of showing "cause" in the procedural default context. As such, in order to show "good cause" for a stay and abeyance, Petitioner need not make a showing that his counsel was so ineffective that his constitutional rights were violated.
This is because a petitioner attempting to excuse a procedural default by alleging a claim of ineffective assistance of counsel must prove an underlying constitutional violation. See Edwards. 529 U.S. at 451.
Therefore, the Court must determine whether ineffective assistance of post-conviction counsel is sufficient "good cause" to warrant a stay and abeyance. Once more, the Court finds the reasoning of Rhines II persuasive. The court in Rhines II found that a petitioner's "reasonable confusion" about whether his counsel exhausted his claims in state court constituted "good cause" to warrant a stay and abeyance. See Rhines II. 408 F.Supp.2d at 849. Further, the court found that "because the court believes that [petitioner's] allegations of ineffective assistance of counsel are analogous to the 'reasonable confusion' about timeliness cited in Pace, the court finds good cause exists to excuse [petitioner's] failure to exhaust his claims in state court." Id. This Court agrees with Rhines II that a petitioner's "reasonable confusion" about whether counsel exhausted claims in state court is "good cause" to warrant a stay and abeyance.
In the instant case, the Court finds that Petitioner was "reasonably confused" about whether State Habeas Counsel exhausted his claims for insufficiency of the evidence, prosecutorial misconduct, and improper expert testimony. This is evident from Petitioner's state habeas petition which states in pertinent part:
This [p]etition, which is filed in part, for exhaustion of state remedies on the issues, alleges that petitioner was deprived of his Sixth and Fourteenth Amendment right [sic] to the effective assistance of appellate counsel. In the instant case, appellate counsel failed to properly raise potentially meritorious federal constitutional issues in the [California] Court of Appeal and in [the California Supreme Court] in the [p]etition for [r]eview. Specifically, appellate counsel failed to allege that (1) the evidence was insufficient to support the convictions on all counts; (2) the gang expert testifying to the ultimate issue deprived [Petitioner] of Fifth, Sixth and Fourteenth Amendment Rights to due process and a fair trial; (3) prosecutorial misconduct deprived [P]etitioner of a fair trial; (4) [P] etitioner was deprived of his Sixth Amendment right to the the [sic] effective assistance of trial counsel for failing to offer contemporaneous objections to the improper testimony of the gang expert and the improper questions and argument by the prosecutor.
Appellate counsel's errors deprived [P]etitioner of review of the federal constitutional issues in the [California] Court of Appeal and [the California Supreme Court] and possibly from review of these issues in the federal court. It is firmly established law that a state prisoner must exhaust his state remedies before petitioning for a writ of habeas corpus in federal court.
(SHP. at 13-14.)(emphasis added) (citations omitted). Petitioner's state habeas petition indicates that State Habeas Counsel was fully aware of the exhaustion requirement and further, that State Habeas Counsel intended to exhaust all of Petitioner's claims through the claim for ineffective assistance of Direct Appellate Counsel. (Id.) Moreover, in his supplemental briefing, Petitioner makes the very same contention stating that it is "apparent that [P]etitioner's intention in filing a habeas petition in the California Supreme Court was to exhaust the claims he believed [Direct] [A]ppellate [C]ounsel improperly failed to raise and exhaust." (Supp. Br. at 4.) Therefore, it is clear Petitioner expected State Habeas Counsel to exhaust his claims and was surprised to find them unexhausted.
The Court notes that all factual allegations in Petitioner's supplemental briefing were uncontested by Respondent.
The Court finds that Petitioner suffered "reasonable confusion" when, after relying upon trained legal counsel to properly exhaust his claims, Petitioner discovered his claims were unexhausted. Petitioner was reasonable in relying upon counsel to exhaust his claims. To find otherwise suggests that an individual is unreasonable when relying upon counsel to properly perform his duties as counsel. Surely an individual who is not legally trained would suffer "reasonable confusion" when, after reading a document purporting to accomplish a particular legal task, the individual discovers counsel failed to complete the task. As such, the Court finds that Petitioner's "reasonable confusion" about whether his claims were exhausted through his state habeas petition constitutes sufficient "good cause" to warrant a stay and abeyance.
This is not to suggest that Petitioner did not assume the risk of his counsel's failure to exhaust. See Murray v. Carrier. 477 U.S. 478, 488 (1986)("So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington[.466 U.S. 668 (1984)] ... we discern no inequity in requiring him to bear the risk of attorney error ...."). To the contrary, the Court has imposed the risk of attorney error upon Petitioner by finding his claims for insufficiency of the evidence, prosecutorial misconduct, and improper expert testimony to be unexhausted. The question before the Court, however, is not whether Petitioner assumed the risk of his counsel's error or whether counsel was constitutionally ineffective. Rather, the question before the Court is whether Petitioner was "reasonably confused" when he relied upon counsel to properly exhaust his claims and counsel failed to do so.
One court has suggested that since many petitioners claim ineffective assistance of post-conviction counsel, "[t]o hold that an allegation of ineffective assistance of post-conviction counsel constitutes 'good cause' for failure to exhaust state remedies . . would render such stays of mixed petitions the rule rather than the exception." Carter v. Friel, 415 F.Supp.2d 1314, 1318-19 (D. Utah 2006) . The Carter court however, has concerned itself with only the first element under Rhines. Rhines set forth three requirements that must be satisfied before a court can grant a stay and abeyance. Rhines. 544 U.S. at 277-78. "Good cause" is only the first of those requirements. Id. A petitioner still must bring claims that are not "plainly meritless" and the petitioner must not be engaged in intentionally dilatory litigation tactics. Id.; cf. Avila v. Kirkland. 249 F.App'x 695 (9th Cir. 2007) (affirming the district court's grant of a stay because the unexhausted claim was plainly meritless) (unpublished). The Supreme Court gave the district courts discretion to consider the Rhines elements and determine whether each has been satisfied. See Rhines, 544 U.S. at 277-78. District courts are well equipped to determine whether a petitioner has satisfied all three elements and, further, are capable of recognizing meritless requests.
Moreover, when a petitioner satisfies all three requirements under Rhines, "it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition." Id. at 278. The Court declines to preclude relief based upon a speculative fear that a large number of petitioners will claim ineffective assistance of post-conviction counsel. If many petitioners are entitled to a stay and abeyance because they satisfy the Rhines test, then all deserving requests should be granted.
IV. PROCEDURE FOLLOWING THE STAY AND ABEYANCE
"Even where a stay and abeyance is appropriate, the district court's discretion in structuring the stay is limited by the timeliness concerns reflected in AEDPA. A mixed petition should not be stayed indefinitely." Id. "[D]istrict courts should place reasonable time limits on a petitioner's trip to state court and back." Id. As such, the Petition is stayed, and is conditional upon Petitioner's initiation of exhaustion proceedings with the state courts within sixty (60) days of entry of this order. The stay is further conditioned upon Petitioner's return to this Court within sixty (60) days of exhaustion of his claims in the state courts.
V. CONCLUSION
For the foregoing reasons, the Court GRANTS Petitioner's request for a stay and abeyance.