Opinion
Case No. 1:20-cv-00303-NONE-JDP
05-11-2020
JOSEPH HASKELL MAINE, Petitioner, v. NDOH, Respondent.
ORDER DISCHARGING ORDER TO SHOW CAUSE ECF No. 6 ORDER GRANTING PETITIONER'S MOTION FOR A STAY AND ABEYANCE OF PETITION ECF No. 7
Petitioner Joseph Haskell Maine, a state prisoner without counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. On April 15, 2020, we ordered petitioner to show cause why his petition should not be dismissed for failure to exhaust two of his claims at the state-level. ECF No. 6. On May 4, 2020, petitioner moved for a stay and abeyance to exhaust his claims. ECF No. 7. For good cause shown, we will discharge our order to show cause and grant petitioner's motion for a stay and abeyance.
Discussion
Petitioner seeks a stay and abeyance under the Rhines procedure. See Rhines v. Weber, 544 U.S. 269, 277 (2005). "Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition." Id. Therefore, a "stay and abeyance should be available only in limited circumstances. Id. Under Rhines, a stay and abeyance is available only where: (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." Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). Good cause under Rhines does not require a showing of "extraordinary circumstances," Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005), however, a petitioner must do more than simply assert that he was "under the impression" that his claim was exhausted, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008). "[T]he first element of the Rhines test can easily be established to the extent that [petitioner was] without counsel" during his post-conviction proceedings. Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017). "A petitioner who is without counsel in state post-conviction proceedings cannot be expected to understand the technical requirements of exhaustion and should not be denied the opportunity to exhaust a potentially meritorious claim simply because he lacked counsel." Id. at 721. Here, petitioner was without counsel during his state post-conviction collateral proceedings. ECF No. 1 at 13. In support of his motion, petitioner states that he "lacked understanding that [he] was able to take [his] habeas petition to the Court of Appeal." ECF No. 7 at 1. Considering petitioner's pro se status, we cannot expect petitioner to have understood the technical requirements of exhaustion. Therefore, we find that petitioner has demonstrated good cause for his failure to exhaust.
Moreover, petitioner's unexhausted claims are not "plainly meritless." First, petitioner seeks to exhaust his claim that the cumulative effect of trial court instructional errors requires reversal. ECF No. 1 at 8. Habeas relief for cumulative trial error may lie where, "although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors [has] still prejudiced a defendant." United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Second, petitioner claims that one of the jurors in his trial, a family member of the victim, was biased against him. ECF No. 1 at 10. The Sixth Amendment guarantees a fair trial by a panel of impartial jurors to criminal defendants and jurors should be "capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 (1982). Because both of petitioner's unexhausted claims are cognizable on federal habeas review, they are not plainly meritless.
Finally, we have no reason to believe that petitioner engaged in "dilatory litigation tactics," such as "abusive litigation tactics or intentional delay." See Rhines, 544 U.S. at 278. Upon receiving our order to show cause, petitioner expeditiously filed a new habeas petition in the California Court of Appeal in an effort to exhaust his remaining claims. ECF No. 7 at 1.
Therefore, petitioner has met the requirements of Rhines and we will grant his motion to stay and hold in abeyance his petition until his remaining claims are exhausted at the state-level.
Order
1. The April 15, 2020 order to show cause is discharged. ECF No. 6.IT IS SO ORDERED. Dated: May 11, 2020
2. Petitioner's motion for a stay and abeyance of his petition is granted. ECF No. 7.
3. Petitioner is directed to file a motion to lift the stay within 30 days of the California Supreme Court issuing a final order resolving petitioner's unexhausted claims.
/s/_________
UNITED STATES MAGISTRATE JUDGE No. 206.