(DP) Cowan v. Cates

• Court: District Court, E.D. California
• Decided: July 13, 2022
• Docket: 1:19-cv-00745
• Status: Unknown

Opinion

1 2 3

5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 ROBERT WESLEY COWAN, Case No. 1:19-cv-00745-DAD

11 Petitioner, DEATH PENALTY CASE

12 v. ORDER (1) DETERMINING EXHAUSTION STATUS OF AMENDED PETITION, and (2) 13 BRIAN CATES, Warden of the California HOLDING FEDERAL PROCEEDINGS IN Correctional Institution, ABEYANCE DURING PENDENCY OF 14 STATE EXHAUSTION PROCEEDINGS Respondent.1 15

16 17 On November 5, 2021, counsel for petitioner moved for a stay of his federal habeas 18 proceeding pursuant to Rhines v. Weber, 544 U.S. 269 (2005), so that he may present the state 19 court with unexhausted claims 1.B.2, 2.D, 2.E, and 3.B, contained in the federal amended habeas 20 corpus petition filed that same day pursuant to 28 U.S.C. § 2254. 21 Respondent Warden Brian Cates, through counsel, filed his response to the motion on 22 November 22, 2021. Petitioner filed his reply in support of the motion on November 29, 2021. 23 The motion was then taken under submission for decision.2 24 On December 8, 2021, the court directed the parties meet and confer and advise it on the 25 exhaustion status of the amended petition. Concurrently, the court ordered the instant Rhines 26 1 See Doc. No. 51. 27 2 See Doc. Nos. 17 at 3; 43. Unless noted otherwise, all references in this order are to CM/ECF 1 motion held in abeyance of its exhaustion determination. On February 7, 2022, the parties timely 2 filed their joint statement on the exhaustion status of the amended petition. 3 Having considered the parties’ filings, the record in this case, and the applicable legal 4 authority, the court finds that: (i) the federal amended petition is exhausted with the exception of 5 petitioner’s claims/Subclaims 1.B.2, 1.C, 2.D, 2.E, 3.B, 3.K, and 24 which are unexhausted; (ii) 6 petitioner has satisfied the requirements for the granting of a stay pursuant to the Supreme Court’s 7 decision in Rhines as to his Subclaim 3.B; and (iii) this federal habeas action shall be stayed pending 8 exhaustion proceedings in state court. 9 I. BACKGROUND 10 The facts of this case, as reflected in the court’s docket, are summarized as follows. On 11 August 5, 1996, petitioner was convicted of two first degree murders with special circumstances 12 of multiple murders and commission of a murder during a robbery and burglary found to be true, 13 and was sentenced to death. See Kern County Superior Court Case No. 059675A. 14 On August 5, 2010, the California Supreme Court affirmed petitioner’s judgment of 15 conviction and sentence on direct appeal. People v. Robert Wesley Cowan, 50 Cal. 4th 401 16 (2010). The United States Supreme Court denied certiorari on March 28, 2011. Robert Wesley 17 Cowan v. California, 563 U.S. 905 (2011). 18 On June 18, 2018, the California Supreme Court discharged its habeas order to show cause 19 directed to the Secretary of the Department of Corrections and Rehabilitation with respect to 20 petitioner’s juror misconduct claim. In re Cowan, 5 Cal. 5th 235, 249 (2018). 21 On May 15, 2019, the state supreme court summarily denied petitioner’s state habeas 22 petition. In re Cowan, Case No. S158073. 23 On May 28, 2019, petitioner commenced this federal habeas proceeding pursuant to 28 24 U.S.C. § 2254 by filing pro se requests for in forma pauperis status, appointment of counsel, and 25 a stay of execution. 26 On May 29, 2019, the court granted petitioner’s requests to proceed in forma pauperis and 27 for appointment of counsel, and denied without prejudice his request for execution stay. 1 On June 6, 2019, the court adopted the recommendation of the Selection Board for the 2 Eastern District of California and appointed the Office of Federal Defender as sole counsel 3 representing petitioner in this federal habeas proceeding. 4 On August 13, 2020, petitioner filed a 424-page federal protective petition for federal 5 habeas relief, asserting therein 24 claims for relief, including subclaims, supported by 10 exhibits. 6 On November 5, 2021, petitioner filed the operative 414-page amended federal petition for 7 writ of habeas corpus asserting 24 claims for relief including subclaims, supported by 15 exhibits. 8 II. DISCUSSION 9 A. Exhaustion Status of the Federal Amended Petition 10 A federal court may not grant habeas relief until the petitioner has exhausted available state 11 remedies with respect to each claim. 28 U.S.C. § 2254(b); Picard v. Connor, 404 U.S. 270, 272 12 (1971). The exhaustion doctrine rests on principles of comity and federalism. Rose v. Lundy, 455 13 U.S. 509, 515 (1982). Exhaustion serves to: (i) protect the state court’s role in the enforcement of 14 federal law, (ii) prevent disruption of state court proceedings, and (iii) reduce piecemeal litigation. 15 Id. at 518–20. Federal habeas review under 28 U.S.C. § 2254(d)(1) is limited to the record that 16 was before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, 563 U.S. 17 170, 180-81 (2011) (concluding that the district court had erred in considering evidence introduced 18 for first time in federal court). 19 A federal constitutional claim is exhausted when it has been “fairly presented” to the highest 20 state court and that court has had a meaningful opportunity to apply controlling legal principles to 21 the facts underlying the claim. Picard, 404 U.S., at 275–77. A claim has been “fairly presented” 22 if the petitioner described in state court both the legal theories and the operative facts on which he 23 bases the claim. Id. at 277–78; accord Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1995), superseded 24 by statute on other grounds as stated in Zapata v. Vasquez, 788 F.3d 1106, (9th Cir. 2015)). To be 25 fairly presented a claim must also be raised in the petition itself, an accompanying brief, or another 26 similar document filed with the state court. Gentry v. Sinclair, 705 F.3d 884, 897-98 (9th Cir. 27 2013). 1 To fairly present the legal theory of a claim, a petitioner must alert the state court that he is 2 asserting a federal constitutional claim, either by citing the constitutional provision on which he 3 relies or otherwise advising the court of the claim’s federal basis. Duncan v. Henry, 513 U.S. 364, 4 365-66 (1995) (the petitioner failed to fairly present Fourteenth Amendment due process claim 5 when he alleged only that prejudice outweighed the probative value of the admitted evidence); 6 Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (the petitioner did not fairly present a Fourteenth 7 Amendment due process claim by asserting that the admission of prior act evidence “infringed on 8 his right to present a defense and receive a fair trial”); Picard, 404 U.S. at 277-78 (a petitioner must 9 present the state courts with same claim he urges upon the federal courts); Baldwin v. Reese, 541 10 U.S. 27, 33 (2004) (the petitioner did not fairly present an ineffective assistance of appellate counsel 11 claim when he did not explicitly include those words, cite the relevant federal constitutional 12 provisions, or otherwise cite to cases showing he was asserting such a federal claim); Castillo v. 13 McFadden, 399 F.3d 993, 1002 (9th Cir. 2004) (the petitioner did not give the state appellate court 14 a fair opportunity to rule on a federal due process claim by concluding his brief with the “scattershot 15 citation of federal constitutional provisions” with no articulation of a federal legal theory for relief). 16 The factual basis of a claim has been found to be fairly presented as long as the facts 17 subsequently alleged in federal court do not: (i) fundamentally alter the nature of the claim 18 presented to the state court, (ii) place the claim in a significantly different and stronger evidentiary 19 posture than it was when the state courts considered it, or (iii) substantially improve the evidentiary 20 basis of the claim. See e.g., Vasquez v. Hillery, 474 U.S. 254, 260 (1986); accord Chacon v. Wood, 21 36 F.3d 1459, 1468 (9th Cir. 1994), superseded by statute on other grounds as stated in Hall v. 22 City of Los Angeles, 697 F.3d 1059, 1070 (9th Cir. 2012); Aiken v. Spalding, 841 F.2d 881, 883 23 (9th Cir. 1988). 24 Generally, a petitioner may add factual materials supportive of the factual basis already in 25 the record without fundamentally altering his claim and rendering it unexhausted. See e.g., 26 Vasquez, 474 U.S., at 260 (a statistical analyses of facts already in record does not render a claim 27 unexhausted); Chacon, 36 F.3d, at 1468 (the factual basis of a claim that an interpreter 1 accuracy of the translation to be at issue). However, if new facts substantially improve the claim, 2 for example by contradicting evidence the state court already considered, then the new factual 3 materials must be presented to the state court. See e.g., Aiken, 841 F.2d, at 883-84 & n.3 (new 4 evidence consisting of decibel level studies of a tape recording of petitioner’s confession, which 5 conflicted with evidence that the state court had considered, substantially improved the evidentiary 6 posture of claim and required exhaustion); Dickens v. Ryan, 740 F.3d 1302, 1317-18 (9th Cir. 2014) 7 (new allegations regarding petitioner’s fetal alcohol syndrome and organic brain damage in support 8 of an ineffective assistance of counsel claim substantially improved the evidentiary posture of the 9 claim and required exhaustion). 10 Of course, exhaustion may be excused where it would be futile. 28 U.S.C. § 2254(b)(1). 11 Section 2254 provides two exceptions to the exhaustion requirement, i.e. where there is “an absence 12 of available State corrective process,” or where “circumstances exist that render such process 13 ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i-ii); see e.g., 14 Edelbacher v. Calderon, 160 F.3d 582, 585 (9th Cir. 1998) (exhaustion is required absent an 15 ineffective state process or other extraordinary circumstances showing futility); Sweet v. Cupp, 640 16 F.2d 233, 236 (9th Cir. 1981) (the exhaustion requirement may be avoided by showing that it would 17 be futile in light of prevailing decisions of highest state court). 18 Here, the parties dispute the exhaustion status of petitioner’s Claims/Subclaims 1.C, 3.E, 7, 19 and 11. (Doc. No. 52 at 2, 7.)3 For the reasons explained below, the court concludes that of these, 20 only petitioner’s Subclaim 1.C is unexhausted,. 21 1. Subclaim 1.C 22 In his Subclaim 1.C, petitioner alleges that his trial counsel’s numerous instances of deficient 23 performance at the guilt phase of his trial as alleged in his Subclaims 1.B.1 through 1.B.8, 24 considered cumulatively, were prejudicial at both the guilt and penalty phases of his trial, violating 25 petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Doc. No. 41 at 83, 26 104-16, citing Strickland v. Washington, 466 U.S. 668 (1984).) 27 3 The parties have stipulated that Claims/Subclaims 1.B.2, 2.D, 2.E, 3.B, 3.K, and 24 are 1 Respondent argues that Subclaim 1.C is unexhausted because it incorporates petitioner’s 2 concededly unexhausted Subclaim 1.B.2., in which he alleges (1) that his trial counsel deficiently 3 failed to elicit testimony at trial from prosecution witness Danny Phinney regarding the alleged 4 alteration of the barrel of the gun implicated in the killing of Mr. Mercks, and (2) that absent this 5 allegedly deficient performance there is a reasonable probability that criminalist Greg Laskowski’s 6 identification of the gun as the murder weapon in his trial testimony would have been impeached. 7 (Doc. No. 52 at 6, citing Ybarra v. McDaniel, 2004 WL 7323457, at *18 (D. Nev., July 27, 2004) 8 (a claim or ground that logically depends on some other claim or ground is exhausted only insofar 9 as that other claim or ground is viable and exhausted).) 10 Petitioner responds that Subclaim 1.C nonetheless is exhausted because it incorporates his 11 concededly exhausted Subclaim 1.B.1, in which he alleges (1) that his trial counsel was deficient 12 by failing to present expert evidence that Laskowski’s use of a Mikrosil casting to match the gun 13 barrel to spent bullets from the crime scene was an unreliable new scientific technique, and (2) that 14 absent this allegedly deficient conduct there is a reasonable probability that Laskowski’s unreliable 15 firearm identification would have been excluded from evidence at petitioner’s trial. (Doc. No. 52 16 at 2, 8-9; see also Doc. No. 41 at 90-92; Doc. No. 41-12; Doc. No. 41-14; Doc. No. 16-49 at 217; 17 Doc. No. 16-77 at 73, 78-82, 87-89; Doc. No. 16-89 at 47-52.) In petitioner’s view, his Subclaim 18 1.C is exhausted notwithstanding its incorporation of unexhausted Subclaim 1.B.2 because 19 exhausted Subclaim 1.B.1 raised prejudice identical to that raised by Subclaim 1.B.2. 20 The court concludes that Subclaim 1.C is unexhausted because it includes unexhausted 21 Subclaim 1.B.2 the factual predicate of which was not presented to the state courts for their 22 consideration. See Strickland, 466 U.S., at 694 (the test for prejudice is whether “there is a 23 reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding 24 would have been different.”) The court finds that counsel’s unprofessional errors alleged in his 25 unexhausted Subclaim 1.B.2 are distinct from, and not cumulative or supplementary of, the 26 unprofessional errors by petitioner’s trial counsel alleged by petitioner in his exhausted Subclaim 27 1.B.1. 1 In his Subclaim 1.B.2, petitioner alleges that his trial counsel erroneously failed to impeach 2 prosecution witness Laskowski’s conclusion that the spent bullets matched unaltered portions of 3 the gun barrel with testimony from trial witness Phinney that the entire gun barrel had altered 4 riffling. (See Doc. No. 41 at 90-92. Phinney’s unelicited testimony relates to whether the spent 5 bullets could be matched to riffling in the gun barrel by any forensic means. Even if the Mikrosil 6 technique was reliable as the state court found, Laskowski’s identification of the handgun as the 7 murder weapon might still have been impeached by testimony from Phinney as now proffered by 8 petitioner that was not presented by his counsel at petitioner’s trial. 9 By contrast, petitioner alleges in his Subclaim 1.B..1 that his trial counsel erred in failing to 10 object to prosecution expert witness Laskowski’s reliance upon and use of an unreliable scientific 11 technique to match the spent bullets to the gun barrel, i.e. comparing the spent bullets to a 12 rubberized Mikrosil cast of the gun’s barrel. (Doc. No. 41 at 83-90 citing People v. Kelly, 17 Cal. 13 3d 24 (1976), superseded by statute as stated in People v. Wilkinson, 33 Cal. 4th 821 (2004); Frye 14 v. United States, 293 F. 1013 (D.C. Cir. 1923), superseded by rule as stated in Daubert v. Merrill 15 Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (hereinafter collectively “Kelly-Frye”); see also 16 Doc. No. 16-83 at 40-47.) Petitioner’s claim in this regard relates to whether the Mikrosil technique 17 was a reliable and acceptable scientific means to match the spent bullets to riffling in the gun barrel. 18 Even if it was, Laskowski’s identification of the gun as the murder weapon might still have been 19 impeached by Phinney’s now proffered testimony that was not presented at trial. 20 Notably, Laskowski conceded at an evidentiary hearing conducted outside the presence of 21 the jury, that an alteration of the barrel such as Phinney related to detective Christopherson would 22 have made it difficult to accurately compare the gun with the known bullets. (Doc. No. 16-77 at 23 227-28 citing RT 2131); see also Cowan, 50 Cal. 4th, at 471 (observing that a comparison of test 24 fired bullets with the bullets removed from Mr. Mercks body was not before the trial court). 25 Given the differing factual predicates underlying the deficient performance of petitioner’s 26 trial counsel as alleged in Subclaims 1.B.1 and 1.B.2, and based upon the facts and evidence now 27 before this court, at this early stage of these proceedings the undersigned is not persuaded by 1 California Supreme Court did not consider the potential cumulative prejudicial effect of Phinney’s 2 unpresented testimony regarding the extent of altered riffling in the gun barrel. (See Doc. No. 41 3 at 104-16, 126-29; Cowan, 50 Cal. 4th, at 468-71; see also Doc. No. 16-49 at 215-31; Doc. No. 16- 4 77 at 227-35; Doc. 16-83 at 28-29, 40-47; Doc. 16-84 at 85-90.) Petitioner has not demonstrated 5 that the California Supreme Court’s consideration of the reliability of the Mikrosil technique under 6 the Kelly-Frye standard (see Kelly, 17 Cal.3d, at 30, quoting Frye, 293 F., at 1014), suggests 7 otherwise. See Ross v. Davis, 22 F.4th 1028, 1058 (9th Cir. 2022) (citing Andrews v. Davis, 944 8 F.3d 1092, 1106 (2019)) (“Strickland’s two prongs serve separate purposes,” with the deficiency 9 analysis focused on “counsel’s adherence to reasonable professional standards, while prejudice 10 looks to the weight of the available evidence and its effect on the case.”). 11 For these reasons, the court also is unpersuaded by petitioner’s suggestion that his allegations 12 in support of the noted unexhausted Subclaim 1.B.2 merely provide “additional evidentiary 13 support” for otherwise exhausted cumulative prejudice allegations set forth in his Subclaim 1.C. 14 (Doc. No. 52 at 8 citing Landrigan v. Schriro, 441 F.3d 638, 648 (9th Cir. 2006), vacated by 15 Landrigan v. Schriro, 501 F.3d 1147 (2007); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). 16 Unlike the situations confronted in Landrigan and Lopez, where the petitioners’ presentation of 17 additional evidence supporting the prejudice prong of an ineffective assistance of counsel claim did 18 not render unexhausted the ineffective assistance claim presented in state court stemming from an 19 alleged deficient mitigation investigation, here trial counsel’s alleged deficient failure to develop 20 and present Phinney’s testimony was not otherwise presented to the state high court. See Humphrey 21 v. Cady, 405 U.S. 504, 516 n.18 (1972) (the test is whether petitioner’s new facts are “so clearly 22 distinct” from the claim he has already presented to the state court that it may fairly be said that the 23 state court had “no opportunity” to pass on the claim); accord Scott v. Schriro, 567 F.3d 573, 583 24 (9th Cir. 2009). 25 Additionally, petitioner has not demonstrated that state court exhaustion proceedings on his 26 Subclaims 1.B.2 and 1.C would be futile and that these Subclaims should therefore be deemed 27 exhausted. 28 U.S.C. § 2254(b)(1), (c). Under the federal habeas statute, a claim is unexhausted 1 question presented.” 28 U.S.C. § 2254(c). In this case, based upon the present record before the 2 court, petitioner has not demonstrated that he lacks the right to raise the unexhausted allegations in 3 state court. See 28 U.S.C. § 2254(b)(1), (c); In re Friend, 11 Cal. 5th 720, 739-42 (2021), as 4 modified September 1, 2021 (the restrictions on successive habeas petitions promulgated in 5 Proposition 66, California’s Death Penalty Reform and Savings Act of 2016 [as approved by voters, 6 Gen. Elec. (Nov. 8, 2016) § 1], do not apply to a newly available claim raised at the first 7 opportunity).4 8 Therefore, the court concludes that petitioner’s Subclaim 1.C is unexhausted. 9 2. Subclaim 3.E 10 In his Subclaim 3.E petitioner alleges that his trial counsel was prejudicially deficient at the 11 penalty phase of petitioner’s trial by failing to present expert testimony explaining the effect of 12 physical and psychological traumas, deprivations, and developmental obstacles that thwarted 13 petitioner’s development and ability to function, violating his rights under the Sixth Amendment. 14 (Doc. No. 41 at 155, 210-26, 247-51.) 15 Respondent argues that petitioner’s Subclaim 3.E is unexhausted because it relies upon the 16 23-page federal habeas declaration of clinical pharmacist and addiction specialist Dr. Gantt 17 Galloway, Pharm.D., opining on the nature and causes of alcohol and drug addiction in general, 18 and petitioner’s addiction in particular which, Dr. Galloway concludes, led to “impaired judgment 19 and a diminished ability to modulate his behavior.” (Doc. No. 52 at 3-5; see also Doc. No. 41-15 20 at 10-23.) Respondent contends that this new evidence fundamentally alters and places in a 21 significantly different and stronger evidentiary posture petitioner’s claim which he presented to the 22 state courts because that claim as presented focused merely on his trial counsel’s failure to develop 23 and present psychosocial evidence of mitigating childhood trauma. (Doc. No. 52 at 3-5 citing Doc. 24 No. 16-83 at 131-46 ; Doc. No. 41-15 at 23); see also Dickens, 740 F.3d, at 1318 (“A claim has not 25 been fairly presented in state court if new factual allegations either fundamentally alter the legal 26 claim already considered by the state courts, or place the case in a significantly different and 27 stronger evidentiary posture than it was when the state courts considered it.”). 1 Petitioner responds that Dr. Galloway’s declaration merely provides additional factual 2 support for the testimony of the mitigation experts, neuropsychologist Dr. Natasha Khazanov and 3 psychologist Dr. Samuel Jinich, offered in support of his state habeas petition that: (i) petitioner’s 4 family history included multigenerational alcohol and drug abuse (Doc. No. 52 at 9-10; see also 5 Doc. 16-84 at 193-94, 198-200; Doc. 16-85 at 87-91), and (ii) petitioner himself suffered physical 6 and mental traumas and longtime drug and alcohol abuse and addiction which damaged his brain 7 and left him with deficits in executive functioning (id.; see also Doc. No. 16-84 at 203-06). 8 Specifically, petitioner argues that Dr. Galloway’s declaration submitted in support of the petition 9 before this federal court merely supplements the experts’ testimony that was presented in the state 10 courts with additional facts regarding the effects of petitioner’s drugs of choice, i.e. 11 methamphetamines, heroin, and alcohol. (Doc. No. 52 at 9-10; see also Doc. No. 42 at 10-11.) 12 The court concludes that petitioner’s Subclaim 3.E is exhausted because Dr. Galloway’s 13 declaration provides expert testimony with respect to petitioner’s mitigating drug and alcohol 14 addiction and resultant brain damage and cognitive impairment that is simply in addition to, and 15 not transformative of, the evidence presented by petitioner in support of his state habeas petition 16 by way of the expert opinions noted above. 17 Petitioner raised the operative facts and federal legal theory for habeas relief underlying his 18 Subclaim 3.E in state court. He claimed in his state habeas petition that penalty phase counsel was 19 ineffective by failing to present expert testimony regarding his heavy addiction to 20 methamphetamine (Doc. No. 16-83 at 131-35, 143-44), and the resultant “cerebral deficits” that 21 he contends impaired his executive functioning, self-regulation, and ability to self-monitor his 22 behavior (Doc. No. 16-83 at 144; see also Doc. No. 16-84 at 168). Petitioner also claimed in his 23 state petition that he was ineligible for execution due to brain damage caused by his long-term 24 addiction to methamphetamine. (Doc. No. 16-83 at 214.) 25 The state court record otherwise provided support for these allegations with evidence of 26 petitioner’s addiction to alcohol and methamphetamine. (See e.g. Doc. 16-84 at 168; Doc. 16-85 27 at 26.) Petitioner’s experts in his state habeas proceedings, Drs. Khazanov and Jinich, opined that 1 (Doc. No. 16-83 at 82-83), along with “long standing addiction to alcohol and drugs” including 2 possible “cortical atrophy of brain tissue which can result in a range of debilitating and irreversible 3 impairments, including severe memory loss, mental inflexibility, learning deficits or exacerbation 4 of pre-existing deficits, and a marked tendency to perseverate.” (Id.; Doc. No. 16-83 at 117-18; 5 see also Doc. No. 16-84 at 193-94, 199-200, 202-06; Doc. No. 16-85 at 26, 87-91.) Dr. Jinich 6 further concluded that petitioner suffered possible brain impairment from his substance abuse and 7 dependence that impacted his executive functioning. (Doc. No. 16-85 at 91, 99, 109-10.) Notably, 8 Dr. Khazanov referred to and discounted petitioner’s 1995 electroencephalogram results and the 9 “normal” finding they reflected, deeming the procedure “notoriously insensitive to many brain 10 disorders[.]” (Doc. No. 16-84 at 189.) 11 Dr. Galloway’s testimony readily appears to supplement the noted state court record with 12 evidence that petitioner was unequivocally a drug addict, and that drug and alcohol addiction is a 13 disease with a critical biological component that causes impaired judgment and loss of behavioral 14 control. (See Doc. No. 41 at 224); see also Vasquez, 474 U.S., at 260 (“[S]upplemental evidence 15 presented by respondent did not fundamentally alter the legal claim already considered by the state 16 courts, and, therefore, did not require that respondent be remitted to state court for consideration of 17 that evidence.”). 18 In his declaration submitted in this federal habeas proceeding Dr. Galloway recounts his 19 expertise in substance abuse and addiction, particularly as to the substances of alcohol and 20 methamphetamine. (Doc. No. 41-15 at 2-4.) He has declared that he was retained to opine on 21 petitioner’s alcohol and drug use and its effect on behavior and functioning. (Id. at 4.) He also 22 declared that petitioner was at increased risk of addition due to his family history, adverse childhood 23 experiences, early exposure to alcohol, and few extant protective factors. (Id. at 12.) He attested 24 that petitioner became addicted to alcohol and amphetamines before adulthood, and that these 25 addictions left him with impaired judgment and diminished ability to modulate his behavior. (Id. 26 at 22-23.) Finally, Dr. Galloway has declared that petitioner’s other mental health issues, as 27 reported by Drs. Jinich and Khaznov, and a lack of treatment combined to keep petitioner from 1 Ultimately, as noted above, the test to be applied by the court in resolving the exhaustion 2 issue is whether petitioner’s claim is “so clearly distinct” from the claim he has already presented 3 to the state court that it may fairly be said that the state court had “no opportunity to pass on the 4 claim.” Humphrey, 405 U.S., at 516, n.18. For the reasons stated above, this court finds that the 5 state court was presented with the opportunity to pass on petitioner’s Subclaim 3.E, and did 6 consider and summarily deny on the merits petitioner’s claim that his trial counsel provided him 7 with prejudicially ineffective assistance of counsel at the penalty phase of his trial based upon these 8 contested allegations. (See Doc. No. 16-83, at AGO-011835-50; Doc. No. 16-102; see also 28 9 U.S.C. § 2254(b)(1); Scott, 567 F.3d, at 583. 10 For these reasons, the court concludes that petitioner’s Subclaim 3.E has been properly 11 exhausted. 12 3. Subclaim 3.K 13 In his Subclaim 3.K petitioner alleges that his trial counsel’s numerous instances of deficient 14 performance at the penalty phase of his trial, considered cumulatively, were prejudicial, thereby 15 violating his rights under the Sixth Amendment. (Doc. No. 41 at 247-51.) 16 The parties have stipulated that petitioner’s Subclaim 3.K is unexhausted to the extent it 17 relies upon a claim of prejudice stemming from petitioner’s concededly unexhausted Subclaim 3.B. 18 (Doc. No. 52 at 2, 7); see also Ybarra, 2004 WL 7323457, at *18; Strickland, 466 U.S., at 691-92. 19 Based upon the parties’ stipulation, the court finds that the state courts were not presented 20 with the opportunity to consider the alleged cumulative prejudice petitioner now contends arises 21 from his concededly unexhausted Subclaim 3.B. 28 U.S.C. § 2254(b)(1); Scott, 567 F.3d, at 583. 22 Additionally, petitioner has not demonstrated that state court exhaustion proceedings with 23 respect to his Subclaims 3.B and 3.K would be futile and that those Subclaims should therefore be 24 deemed exhausted by this court. 28 U.S.C. § 2254(b)(1), (c); see also discussion of Subclaim 3.B 25 in context of a Rhines stay and abeyance, post.) As noted above, a claim is unexhausted if petitioner 26 “has the right under the law of the State to raise, by any available procedure, the question 27 presented.” 28 U.S.C. § 2254(c). In this case, petitioner has not demonstrated on the record before 1 § 2254(b)(1), (c); Friend, 11 Cal. 5th, at 739-42. Instead, petitioner concedes the matter, at least 2 implicitly, by arguing that this court should stay this federal habeas proceeding pending state court 3 exhaustion proceedings on his Subclaim 3.B. (See Doc. No. 42 at 9-10, 15-16, 18.) 4 Therefore, the court concludes that Subclaim 3.K is unexhausted. 5 4. Claim 7 6 In petitioner’s Claim 7 he alleges that the state trial court erred by admitting into evidence 7 at trial prosecution witness Emma Foreman’s out-of-court statement to a police officer, that 8 petitioner told her he killed two old people in Bakersfield, and in erroneously admitting that 9 evidence violated his confrontation and due process rights under the Sixth and Fourteenth 10 Amendments. (Doc. No. 41 at 300-09, citing Crawford v. Washington, 541 U.S. 36, 50-51, 68 11 (2004) (out-of-court, testimonial statements are inadmissible unless the declarant is unavailable and 12 defendant had a prior opportunity to cross-examine the witness); see also Doc. No. 16-77 at 149- 13 50, 193-94; Doc. No. 16-83 at 28; Estelle v. McGuire, 502 U.S. 62, 70 (1991) (“[T]he Due Process 14 Clause guarantees the fundamental elements of fairness in a criminal trial.”). 15 Respondent argues that petitioner’s Claim 7 is unexhausted because in state court, petitioner 16 did not cite or raise the decision in Crawford, or the principles announced therein, as a basis for 17 relief. (Doc. No. 52 at 5, citing Doc. 16-77 at 197-98; see also Doc. No 16-83 at 51-52.) 18 Respondent argues that, as a result, the state court was not provided the opportunity “to pass upon 19 and correct” this alleged violation of petitioner’s federal constitutional rights. (Doc. No. 52 at 5, 20 citing Fields v. Waddington, 401 F.3d 1018, 1020-22 (9th Cir. 2005) (the state court must have the 21 opportunity to pass upon clearly identified federal issues; reference to broad constitutional 22 principles is insufficient to establish exhaustion). 23 Petitioner responds that his Claim 7 is exhausted because the California Supreme Court, on 24 direct appeal, considered and cited the decision in Crawford in finding that the admission of 25 Forman’s out-of-court statement did not violate the Sixth Amendment. (Doc. No. 52 at 10, citing 26 Doc. 16-77 at 193); Cowan, 50 Cal. 4th, at 463 (citing Crawford, 541 U.S. 36, 59 & n.9). 27 Particularly, petitioner suggests that the state supreme court found no Crawford rule issue to have 1 recall and cross-examine Foreman about the discrepancy between her trial testimony and her earlier 2 out-of-court statement given to Shafter Police Lieutenant Porter. (See Cowan, 50 Cal. 4th at 463.) 3 Petitioner’s argues that he need not have re-presented the legal theory underlying this claim for 4 relief. (Doc. No. 52 at 10 citing Castille v. Peoples, 489 U.S. 346, 350 (1989) (“[O]nce the state 5 courts have ruled upon a claim, it is not necessary for a petitioner to ask the state for collateral 6 relief, based upon the same evidence and issues already decided by direct review.”); Ybarra v. 7 McDaniel, 656 F.3d 984, 991 (9th Cir. 2011) (a claim is exhausted where the state court has in fact 8 ruled on its merits). 9 This court concludes that petitioner’s Claim 7 has been properly exhausted because 10 petitioner fairly presented the California Supreme Court with his claim that the admission into 11 evidence at his trial of Foreman’s pretrial statement to Lieutenant Porter denied petitioner his 12 confrontation rights as guaranteed by the Sixth and Fourteenth Amendments, and that court 13 specifically considered that claim of constitutional error under the rule of Crawford in affirming 14 petitioner’s judgment of conviction on direct appeal, as discussed below. Picard, 404 U.S., at 275– 15 77. 16 In his state post-conviction proceedings, petitioner specifically invoked his Confrontation 17 Clause rights under the Sixth Amendment. On direct appeal, petitioner claimed that Foreman’s 18 prior statement was inadmissible hearsay, and that the erroneous admission of Forman’s prior 19 statement into evidence at his trial violated his due process rights under the Fourteenth Amendment, 20 and his confrontation right under the Sixth and Fourteenth Amendments as well as article I section 21 15 of the California Constitution. (Doc. No. 16-77 at 193-98, 204 citing California v. Green, 399 22 U.S. 149, 158 (1970) (finding that the Confrontation Clause was not violated by admission of 23 declarant's out-of-court statements where the declarant is testifying as a witness at trial and is 24 subject to full and effective cross-examination). Although petitioner did not specifically refer to 25 the decision in Crawford in his opening brief on direct appeal in state court, he did in that brief 26 present arguments implicating the principles underlying the decision in Crawford by arguing that 27 Foreman’s statement was unconfronted because she was effectively unavailable for cross- 1 appeal that the admission of witness Phinney’s unconfronted hearsay statements similarly violated 2 the holding in Crawford; Doc. No. 16-79 at 80-81 (same).) 3 Moreover, in his state habeas proceeding petitioner claimed that his trial counsel erred by 4 objecting to the admission of Foreman’s out-of-court statement only as state law hearsay, and not 5 on grounds that the “admission of Foreman’s extrajudicial statement violated petitioner’s right to 6 confrontation under the Sixth Amendment and his right to due process under the Fourteenth 7 Amendment.” (See Doc. No. 16-83 at 51-52, citing Doc. No. 16-84 at 35.) In his reply (to the 8 informal response) in support of his state habeas petition, petitioner specifically cited to the decision 9 in Crawford in arguing that the admission into evidence of Foreman’s pretrial statement constituted 10 error. (See Doc. No. 16-89 at 54-56.) 11 Furthermore, the California Supreme Court was certainly aware that:

12 Under the Sixth Amendment, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses 13 against him.” U.S. Const. amend. VI. This confrontation right applies to the States through the Fourteenth Amendment. Pointer v. Texas, 14 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965). A defendant’s right to cross-examine the witnesses brought against him 15 is a fundamental right under the Confrontation Clause. Id 16 Darby v. Ramirez-Palmer, No. C 02-1119 CW, 2007 WL 1345223, at *4 (N.D. Cal. May 8, 2007), 17 aff'd, 323 F. App’x 567 (9th Cir. 2009); see also Gray v. Montgomery, No. SACV15313VBFGJS, 18 2018 WL 7889825, at *15 (C.D. Cal. Sept. 11, 2018), report and recommendation adopted, No. 19 SACV171500313VBFGJS, 2019 WL 1405549 (C.D. Cal. Mar. 26, 2019) citing Woodford v. 20 Visciotti, 123 S. Ct. 357, 360 (2002) (“There is a presumption that state courts know and follow the 21 law[.]”) 22 The California Supreme Court also presumably was aware that the decision in Crawford 23 applied to petitioner’s case. In Crawford, decided on March 8, 2004, the United States Supreme 24 Court announced a “new rule” for purposes of Teague analysis and petitioner's conviction was still 25 pending on direct review. See Jaffe v. Brown, No. 05-CV-04439-PJH, 2015 WL 5569135, at *6 26 (N.D. Cal. Sept. 21, 2015) (citing Whorton v. Bockting, 549 U.S. 406, 416 (2007) (“a new rule is 27 generally applicable only to cases that are still on direct review”) (applying Teague v. Lane, 489 1 The record in this case reflects that the California Supreme Court considered and applied the 2 clearly established post-Crawford federal law in the course of its evaluation of whether the 3 admission of Foreman’s out-of-court statement into evidence at trial denied petitioner his right to 4 confrontation. Picard, 404 U.S., at 275–77. 5 As discussed above, the test this court must apply in making the exhaustion determination is 6 whether petitioner’s claim is “so clearly distinct” from the claim he presented to the state court that 7 it may fairly be said that the state court had “no opportunity” to pass on the claim. Humphrey, 405 8 U.S., at 516, n.18. For the reasons stated above, the court concludes the state court had the 9 opportunity to and did in fact rule on petitioner’s claim that the trial court erred by admitting the 10 pretrial statement of Foreman into evidence at trial in violation of the Sixth Amendment 11 Confrontation Clause and the clearly established rule announced in Crawford. See Cowan, 50 Cal. 12 4th, at 461-64; see also 28 U.S.C. § 2254(b)(1); Scott, 567 F.3d, at 583. 13 Therefore, the court finds that petitioner’s Claim 7 has been properly exhausted. 14 5. Claim 11 15 In his Claim 11 petitioner alleges that the trial court erred by admitting in the guilt phase of 16 his trial the irrelevant testimony by Mitzi Culbertson that petitioner’s brother, Gerald Cowan, was 17 in possession of $200 possibly taken from victim Russell pursuant to a conspiracy with petitioner 18 to rob and kill Russel. (Doc. No. 41 at 330-34; see also Doc. No. 16-77 at 98-99.) Petitioner also 19 contends that the jury improperly relied upon that erroneously admitted testimony as aggravating 20 evidence in its sentencing determination on the Mercks’ murders, thereby violating petitioner’s 21 rights under the Eighth and Fourteenth Amendments. (Id.) 22 Respondent argues that petitioner’s Claim 11 is unexhausted because in state court, 23 petitioner did not raise as a basis for relief a claim that the trial court erroneously admitted 24 Culberston’s testimony as aggravating evidence at the penalty phase of petitioner’s trial, following 25 his conviction of the Mercks’ murders.5 (Doc. No. 52 at 6.) Respondent argues that petitioner’s 26 claim as presented in state court asserted only that Culbertson’s testimony was irrelevant at the

27 5 The jury at petitioner’s trial deadlocked on the count charging him with the murder of Jewell Russell, and the trial court declared a mistrial as to that count. (Doc. No. 41 at 333, citing Doc. 1 guilt phase of the trial and should have been excluded. (Id.) 2 Petitioner responds that his Claim 11 is exhausted because, on direct appeal, the California 3 Supreme Court considered and rejected: (1) his argument that Culbertson’s guilt phase testimony 4 was erroneously admitted at the penalty phase (Doc. No. 52 at 10-11; see also Doc. No. 41 at 332- 5 34 citing Doc. No. 16-77 at 269-71; Cowan, 50 Cal. 4th, at 481-83), and (2) the allegation of trial 6 court error and ineffective assistance of counsel arising from the trial court’s failure to instruct the 7 jury at the penalty phase of petitioner’s trial that the Russell murder could not be considered as 8 aggravating “other crimes” evidence unless it was proven beyond a reasonable doubt that petitioner 9 murdered Russell. (See Doc. No. 16-77 at 286-93; see also Doc. No. 16-79 at 125-29; Cowan, 50 10 Cal. 4th, at 487-93; cf. Doc. No. 16-78 at 204-05.) 11 The court finds that petitioner’s Claim 11 is exhausted because petitioner fairly presented to 12 the California Supreme Court his claim that the trial court erroneously admitted Culbertson’s 13 irrelevant testimony at the penalty phase of his trial, thereby violating his rights under the Eighth 14 and Fourteenth Amendments. Picard, 404 U.S., at 275–77. Notably, petitioner alleged in state 15 court that his trial counsel provided him ineffective assistance by: (i) failing to object to the 16 admission of Culbertson’s testimony at trial on the grounds it was irrelevant and violated both his 17 Eighth Amendment right to a reliable penalty determination and his due process right to a fair trial 18 (see Doc. No. 16-83 at 54-55), and (ii) failing to request that the jury be instructed that the Russell 19 murder could not be considered in aggravation unless proven beyond a reasonable doubt (Doc. No. 20 16-83 at 160-61; Doc. No. 16-89 at 94-96; see also Doc. No. 41 at 357-61; Doc. No. 52 at 2 21 [regarding the concededly exhausted Claim 15 allegations of trial court error in failing to instruct 22 the penalty phase jury at petitioner’s trial that it could not consider the Russell killing].) 23 As stated above, the test to be applied in determining if a habeas claim has been exhausted 24 is whether petitioner’s claim is “so clearly distinct” from the claim he has already presented to the 25 state court that it may fairly be said that the state court had “no opportunity” to pass on the claim. 26 Humphrey, 405 U.S., at 516, n.18. For the reasons stated, the court finds that here the state court 27 did have the opportunity to pass on petitioner’s contested allegations that the trial court erred by 1 thereby violating his rights under the Eighth and Fourteenth Amendments. See Cowan, 50 Cal. 2 4th at 481-83; see also 28 U.S.C. § 2254(b)(1); Scott, 567 F.3d, at 583. 3 Therefore, the court concludes that petitioner’s Claim 11 is properly exhausted. 4 6. Claim 24 5 In his Claim 24 petitioner alleges that his trial counsel’s numerous instances of deficient 6 performance at both the guilt and penalty phases of his trial, considered cumulatively, were 7 prejudicial, violating petitioner’s rights under the Fifth, Sixth, Eighth, and Fourteenth 8 Amendments. (Doc. No. 41 at 411-12, citing Doc. No. 16-77 at 370; Doc. No. 16-83 at 177-80.) 9 The parties have stipulated that petitioner’s Claim 24 is unexhausted to the extent it relies 10 upon alleged prejudice stemming from petitioner’s unexhausted Claims and Subclaims. (Doc. No. 11 52 at 2, 7); see also Ybarra, 2004 WL 7323457, at *18; Strickland, 466 U.S., at 691-92. 12 The court finds that the state court did not have the opportunity to pass on the alleged 13 cumulative prejudice arising from the noted unexhausted Subclaims in which petitioner has alleged 14 that he received ineffective assistance of counsel at his trial. 28 U.S.C. § 2254(b)(1); Scott, 567 15 F.3d, at 583; see also Wooten v. Kirkland, 540 F.3d 1019, 1025-26 (9th Cir. 2008) (stand-alone 16 cumulative error claim must be exhausted); accord Solis v. Garcia, 219 F.3d 922, 930 (9th Cir. 17 2000); Ybarra, 2004 WL 7323457, at *18. 18 Additionally, petitioner has not demonstrated that state court exhaustion proceedings with 19 respect to his Claim 24 and the unexhausted Subclaims would be futile, such that these 20 Claims/Subclaims should nonetheless be deemed exhausted. 28 U.S.C. § 2254(b)(1), (c). As 21 discussed above, a claim presented on federal habeas is unexhausted if the petitioner “has the right 22 under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. 23 § 2254(c). In this case, petitioner has not shown on the present record, that he lacks the right to 24 raise the unexhausted allegations in state court. See 28 U.S.C. § 2254(b)(1), (c); Friend, 11 Cal. 25 5th, at 739-42. 26 Therefore, the court concludes that petitioner’s Claim 24 is unexhausted. 27 ///// 1 B. Stay and Abeyance of the Federal Amended Petition 2 As noted at the outset, a federal court will not grant a state prisoner’s application for a writ 3 of habeas corpus unless “the applicant has exhausted the remedies available in the courts of the 4 State.” 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by fairly 5 presenting to the highest state court all federal claims before presenting those claims for relief to 6 the federal court. Reese, 541 U.S., at 29; Wooten, 540 F.3d, at 1025. 7 Stay and abeyance of a federal habeas petition that includes both exhausted and unexhausted 8 claims is appropriate in “limited circumstances” where (1) “the petitioner has good cause for his 9 failure to exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there is no 10 indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S., 11 at 277-78. Such a stay allows state courts the first opportunity to consider and address a state 12 prisoner’s habeas corpus claims. Rhines, 544 U.S., at 273–74 (citing Lundy, 455 U.S., at 518-19); 13 see also King v. Ryan, 564 F.3d 1133, 1138 (9th Cir. 2009) (“Habeas petitioners have long been 14 required to adjudicate their claims in state court - that is, ‘exhaust’ them before seeking relief in 15 federal court.”). 16 “Good cause” in the context of a Rhines stay turns on whether the petitioner can set forth a 17 reasonable excuse, supported by sufficient evidence, to justify the failure to exhaust. Jackson v. 18 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005); see also Pace v. DiGuglielmo, 544 U.S. 408, 416-17 19 (2005) (reasonable confusion regarding the timeliness of a state filing ordinarily constitutes good 20 cause); Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014) (“legitimate reason” for the failure to 21 exhaust satisfies the equitable “good cause” element of the Rhines test). 22 In determining whether a claim is “plainly meritless,” principles of comity and federalism 23 demand that the federal court refrain from ruling on the merits of a claim unless “it is perfectly 24 clear that the petitioner has no hope of prevailing.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 25 2005). “A contrary rule would deprive state courts of the opportunity to address a colorable federal 26 claim in the first instance and grant relief if they believe it is warranted.” Id. (citing Lundy, 455 27 U.S., at 515). 1 The caselaw concerning what constitutes “good cause” under Rhines has not been developed in great detail. Blake v. Baker, 745 F.3d 977, 2 980 (9th Cir. 2014) (“There is little authority on what constitutes good cause to excuse a petitioner's failure to exhaust.”). 3 * * * 4 We do know, however, that a petitioner has been found to demonstrate 5 “good cause” where he meets the good cause standard announced in Martinez v. Ryan, 566 U.S. 1 (2012). Blake, 745 F.3d at 983–84. 6 Martinez carved out an exception to the general rule, stated in Coleman v. Thompson, 501 U.S. 722, 753-54 (1991), that “ignorance 7 or inadvertence” on the part of a petitioner's post-conviction counsel does not constitute cause to excuse a procedural default of a claim. 8 Specifically, the Martinez Court concluded that “[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in 9 an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of 10 ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was 11 ineffective.” Martinez, 132 S. Ct. at 1320.

12 In Blake, we concluded that the ineffective assistance of post- 13 conviction counsel could constitute good cause for a Rhines stay, provided that the petitioner's assertion of good cause “was not a bare 14 allegation of state post-conviction [ineffective assistance of counsel], but a concrete and reasonable excuse, supported by evidence.” Blake, 15 745 F.3d at 983. The court further observed that “good cause under Rhines, when based on [ineffective assistance of counsel], cannot be 16 any more demanding than a showing of cause under Martinez to excuse state procedural default.” Id. at 983–84. We emphasized, in 17 response to the idea that ineffective assistance of post-conviction counsel could always be raised, that Rhines’s requirement that claims 18 not be plainly meritless and that the petitioner not engage in dilatory litigation tactics “are designed ... to ensure that the Rhines stay and 19 abeyance is not . . . available in virtually every case,” id. at 982. 20 Dixon v. Baker, 847 F.3d 714, 720-21 (9th Cir. 2017). 21 The decision whether to grant a Rhines stay is subject to the discretion of the district court. 22 Rhines, 544 U.S. at 276; see also Jackson, 425 F.3d, at 661 (when the three Rhines factors are 23 satisfied, however, “it likely would be an abuse of discretion for a district court to deny a stay[.]”). 24 Here, petitioner moves the court to stay this federal habeas proceeding and hold it in 25 abeyance for a reasonable time so that he may present the state courts with the following 26 unexhausted Claims:6

27 6 To the extent petitioner might seek to augment concededly exhausted Subclaims 1.B.7 and 3.E (see Doc. No. 42 at 10-12), such relief is premature, and not properly before the court at this time. 1 Subclaim 1.B.2: Alleging ineffective assistance of trial counsel at the guilt phase by failure to elicit information from Danny Phinney 2 regarding alteration of the handgun barrel in order to impeach criminalist Greg Laskowski - violating rights under the Fifth, Sixth, 3 Eighth, and Fourteenth Amendments.

4 Subclaims 2.D and 2.E: Alleging presentation of false and unreliable scientific evidence of fingerprint identification and firearms toolmark 5 identification at trial, in light of new scientific studies and research regarding feature comparison methods - violating rights under the 6 Fifth, Sixth, Eighth, and Fourteenth Amendments.

7 Subclaim 3.B: Alleging ineffective assistance of trial counsel at the penalty phase by failure to challenge the constitutionality of an invalid 8 1970 conviction for robbery, including counsel’s related conflict of interest, and the prosecutor’s related failure to disclose the invalidity 9 of the conviction - violating rights under the Sixth, Eighth, and Fourteenth Amendments. 10 11 (Doc. No. 42 at 8-10); see also Friend, 11 Cal. 5th, at 739-41. 12 Petitioner argues that newly discovered legal and factual grounds, and ineffective assistance 13 provided by his state habeas counsel, provide good cause for his failure to exhaust these Subclaims. 14 (Doc. No. 42 at 13-16.) He also argues the Subclaims are supported by his evidentiary proffer and 15 clearly established federal law, and are therefore colorable. (Id., at 17-18.) 16 Respondent opposes petitioner’s motion, arguing that petitioner is not entitled to a stay under 17 Rhines because he has not shown good cause for his failure to exhaust his new, potentially 18 meritorious claims. (Doc. No. 45 at 6-11.) 19 Petitioner replies by pointing to his argument in support of the motion (Doc. No. 46 at 2-9), 20 and by observing that respondent appears to concede the absence of any intentionally dilatory 21 litigation tactics attributable to petitioner and his counsel (Doc. No. 46 at 9.) 22 The court has considered the parties’ arguments and concludes that, based upon the record 23 before it and the applicable law, petitioner is entitled to a stay and abeyance under Rhines. 24 Specifically, the court finds that petitioner’s state habeas counsel’s failure to exhaust petitioner’s 25 potentially meritorious Subclaim 3.B meets the Coleman/Martinez “good cause” standard. See 26 Blake, 745 F.3d at 983-84 & n.7 (the Rhines standard for ineffective assistance of counsel based 27 cause is not any more demanding than the cause standard articulated in Martinez). ///// 1 Petitioner proffers evidence that his state habeas counsel failed to independently investigate 2 the facts underlying his potentially meritorious Subclaim 3.B allegations that petitioner’s trial 3 counsel provided ineffective assistance at the penalty phase of the trial by failing to investigate and 4 challenge the validity of petitioner’s 1970 robbery conviction that was presented by the prosecution 5 in aggravation. In support of this ineffective assistance of trial counsel claim, for example, 6 petitioner now points to evidence that: (i) his trial counsel was on notice that the 1970 conviction 7 would be introduced as evidence in support of a sentencing enhancement (Doc. No. 41 at 159 citing 8 Doc. No. 16-3 at 132-33, 135, 137-38) and in aggravation at the penalty phase of petitioner’s trial 9 (id., citing Doc. No. 16-4 at 232-33), (ii) the prosecutor offered into evidence the certified judgment 10 of conviction for the 1970 robbery (Doc. No. 41-5 at 2-10; Doc. No. 16-60 at 3-4, 72), (iii) his trial 11 counsel did not investigate or contest the validity of that 1970 conviction (Doc. No. 16-60 at 3-6, 12 73-76; Doc. No. 41-13), (iv) petitioner’s 1970 conviction was later found invalid on Boykin/Tahl 7 13 grounds by a state superior court in 1986 (Doc. No. 42 at 9-10, 15-16, 18; see also Doc. No. 41 at 14 157-64; Doc. Nos. 41-5 through 41-10, 41-13), and (v) the trial court found the allegation of 15 petitioner’s 1970 conviction to be true, added five years to petitioner’s sentence, and allowed that 16 conviction to be admitted as an aggravating factor at the guilt phase of petitioner’s trial (Doc. No. 17 41 at 160 citing Doc. No. 16-60 at 5-6, 73-76; Doc. No. 16-6 at 261). 18 Based on this evidence, petitioner alleges that these omissions and failures by his trial 19 counsel were prejudicially deficient. (Doc. No. 41 at 165, 247-51, citing Cowan, 50 Cal. 4th, at 20 425-26); see also Guideline 10.7, American Bar Association Guidelines for the Appointment and 21 Performance of Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REV. 913, 1015-27 22 (2003) (counsel handling state collateral proceedings must undertake a thorough investigation into 23 the facts surrounding all phases of the case); Johnson v. Mississippi, 486 U.S. 578, 584-86 (1988) 24 (an invalid conviction may not be used as aggravating evidence in the penalty phase of a capital 25 case); Strickland, 466 U.S., at 694. 26 In support of his contention that he received ineffective assistance of counsel in connection 27 with his state habeas proceedings, petitioner points to evidence that his: (i) state habeas counsel did 1 not independently investigate and present the colorable claim of ineffective assistance of trial 2 counsel (Doc. No. 16-83 at 31-35; Doc. No. 41-14), (ii) state habeas counsel’s omissions were not 3 motivated by legal tactics (Doc. No. 16-84 at 30), but instead were attributable to the fact that his 4 counsel was unaware that petitioner’s 1970 conviction was invalid (Doc. No. 41-14 at 3), (iii) state 5 habeas counsel’s omissions and/or failures were prejudicially deficient (Strickland, 466 U.S., at 6 694; see also Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (“The relevant question is not 7 whether counsel’s choices were strategic, but whether they were reasonable.”); Yates v. Sinclair, 8 No. C13-0842RSM, 2018 WL 2387791, at **1-2 (W.D. Wash. May 25, 2018) (petitioner’s claim 9 that an invalid prior conviction was used as aggravating evidence in the penalty phase of his trial 10 justified the granting of a Rhines stay); cf. Davila v. Davis, __U.S. __, 137 S. Ct. 2058, 2067 (2017) 11 (effective appellate counsel should not raise every nonfrivolous argument on appeal, but rather only 12 those arguments most likely to succeed)). 13 Respondent’s suggestion that Subclaim 3.B’s claim of penalty phase ineffective assistance 14 by failure to discover and present the invalidity of petitioner’s 1970 conviction is not a substantial 15 claim under Martinez (see Doc. No. 45 at 11), is belied by the record. See Storey v. Paramo, No. 16 17CV0023-LAB(MSB), 2019 WL 1317792, at *35 (S.D. Cal. Mar. 22, 2019), report and 17 recommendation adopted, No. 17CV23-LAB (MSB), 2019 WL 4040701 (S.D. Cal. Aug. 27, 2019), 18 citing Martinez, 566 U.S., at 14 (holding that a claim is “substantial” if the petitioner can show that 19 “the claim has some merit.”). Moreover, respondent’s reliance upon the decisions in Cuyler v. 20 Sullivan, 446 U.S. 335 (1980) and Brady v. Maryland, 373 U.S. 83 (1963) in arguing the Subclaim 21 lacks merit (see Doc. No. 45 at 11) is misplaced because here trial counsel’s alleged failure to 22 investigate petitioner’s 1970 conviction is independent of any alleged conflict of interest or 23 prosecutorial misconduct. (See e.g., Doc. No. 41 at 162-63, citing Rompilla v. Beard, 545 U.S. 24 374, 383-87 (2005) (trial counsel was ineffective in failing to examine the court file regarding the 25 defendant’s prior conviction). 26 The court concludes that petitioner has adequately demonstrated that the unexhausted 27 allegations now made in support of his Subclaim 3.B are potentially meritorious under Rhines. 1 assistance of penalty phase counsel, the fundamental fairness of petitioner’s trial, and the 2 reliability of his conviction and sentence, and are at least “colorable” and not “hopeless” upon 3 consideration of the state record. See Cruz v. Mitchell, No. 13-CV-2792-JST, 2015 WL 78779, at 4 *3 (N.D. Cal. Jan. 5, 2015) (petitioner’s unexhausted claims are potentially meritorious where 5 they are not “vague, conclusory, or patently frivolous”); see also Brecht v. Abrahamson, 507 U.S. 6 619, 637-38 (1993) (federal habeas relief is available where alleged constitutional error by the 7 trial court had a substantial and injurious effect on the verdict); Strickland, 466 U.S., at 694 8 (federal habeas relief for ineffective assistance of counsel is available where, absent counsel’s 9 deficient conduct, there is a reasonable probability of a different outcome). As one district court 10 has noted: 11 Courts in this circuit have found good caused based on a similar showing. See [Cruz] (petitioner’s showing that current counsel 12 uncovered evidence of jury misconduct that could have been uncovered, and raised, by state habeas counsel is sufficient showing 13 of ineffective assistance of counsel for Rhines stay). 14 Ervine v. Warden, San Quentin State Prison, No. 2:15-CV-1916 TLN DB, 2018 WL 372754, at 15 *3 (E.D. Cal. Jan. 10, 2018), report and recommendation adopted, No. 2:15-CV-01916-TLN-DB, 16 2018 WL 1173959 (E.D. Cal. Mar. 6, 2018); cf. Barrera v. Muniz, No. 2:14-CV-2260 JAM DAD 17 P, 2015 WL 4488235 at *3 (E.D. Cal. July 23, 2015), report and recommendation adopted, 2015 18 WL 6736813 (E.D. Cal. Nov. 4, 2015) (no good cause found where petitioner submitted no 19 evidence in support of ineffective assistance of counsel). The Ninth Circuit has made clear that 20 the federal court should not usurp the state court’s right to first address the merits of a “colorable 21 federal claim.” Dixon, 847 F.3d at 722. 22 The court observes that in seeking stay and abeyance under Rhines, petitioner need not prove 23 that he received ineffective assistance from his post-conviction counsel under the Strickland standard. 24 See e.g., Ervine, 2018 WL 372754, at *3. Under Blake, petitioner need only provide a “concrete and 25 reasonable excuse, supported by evidence” that his post-conviction counsel failed to discover, 26 investigate, and present to the state courts the new claim. Id.; see also Martinez, 566 U.S., at 14. Here, 27 the court finds that petitioner has carried this burden, for the reasons stated above. See Blake, 745 F.3d, 1 Additionally, the court finds nothing in the record suggesting that petitioner has engaged in 2 “intentionally dilatory litigation tactics,” either prior to or after filing his amended federal petition. 3 Petitioner was required to have this court determine the exhaustion status of his federal petition before 4 filing his exhaustion petition in state court. (See Doc. No. 42 at 18-19, citing Lucas v. Davis, No. 5 15CV1224-GPC (WVG), 2017 WL 1807907, at *10–11 (S.D. Cal. May 5, 2017) (petitioner was not 6 dilatory in waiting for the federal court to rule on exhaustion before filing a petition in state court); 7 Leonard v. Davis, No. 2:17-CV-0796-JAM-AC DP, 2019 WL 1772390, at *5 (E.D. Cal. Apr. 23, 2019), 8 report and recommendation adopted, 2019 WL 2162980 (E.D. Cal. May 17, 2019) (same). Respondent 9 does not argue otherwise, nor has respondent suggested that petitioner has engaged in intentionally 10 dilatory tactics, implicitly conceding this point. (See Doc. No. 45.) 11 Furthermore, the record before this court suggests that petitioner has investigated and ascertained 12 his unexhausted claims, and sought stay and abeyance of this action so that he may pursue state court 13 exhaustion of those unexhausted claims, consistent with the court’s case management process and 14 scheduling orders. Indeed, as noted, petitioner filed his motion for stay and abeyance under Rhines 15 contemporaneously with his operative amended federal petition. 16 The court need not determine whether a Rhines stay is appropriate as to each of petitioner’s 17 unexhausted Claims/Subclaims. A federal habeas petitioner need only show that one of his 18 unexhausted claims is not “plainly meritless” in order to obtain a stay under Rhines. 544 U.S. at 19 277; see also Horning v. Martel, No. 2:10-CV-1932 JAM GGH DP, 2011 WL 5921662, at **2-3 20 (E.D. Cal. Nov. 28, 2011), report and recommendation adopted, 2012 WL 163784 (Jan. 19, 21 2012) (“One claim requiring a stay acts as an umbrella for all claims.”); Jackson v. CSP-Solano, 22 No. 2:14-CV-2268 MCE-DB P, 2017 WL 404583, at *5 (E.D. Cal. Jan. 30, 2017), report and 23 recommendation adopted, 2017 WL 896325 (E.D. Cal. Mar. 6, 2017) (same). Because petitioner 24 has satisfied the requirements of Rhines as to unexhausted Subclaim 3.B, federal proceedings 25 should be stayed and held in abeyance until petitioner has filed an exhaustion petition and the 26 state courts have acted on it.8 27 8 Of course, the court expresses no opinion on the ultimate merits of the unexhausted ] Of course, a Rhines stay may not be indefinite or without reasonable time limits established 2 | for petitioner’s return to state court. 544 U.S. at 277-78. Although the duration of the stay of 3 | these federal habeas proceedings 1s dependent upon how long the exhaustion petition is pending 4 | before the state courts, it will conclude upon the rendering of a final decision in state court on the 5 | exhaustion petition. 6 For all of the reasons stated above, the court finds that: (i) petitioner has established good 7 |cause for the granting of a stay of these proceedings based on his showing that post-conviction 8 counsel could have, but failed to, raise unexhausted Subclaim 3.B; (ii) petitioner’s Subclaim 3.B 9 potentially meritorious; and (111) there is no indication that petitioner has acted in an 10 | intentionally dilatory fashion.’ 1] Ill. CONCLUSION 12 Accordingly, the court finds that petitioner’s Claims/Subclaims 1.B.2, 1.C, 2.D, 2.E, 3.B, 13 |3.K, and 24 as asserted in the operative amended federal petition for habeas relief are 14 | unexhausted. Petitioner’s motion for stay and abeyance under Rhines (Doc. No. 42) is granted. 15 | Any and all currently scheduled dates in this federal habeas proceeding are hereby vacated. 16 | Petitioner shall file his state exhaustion petition within thirty (30) days from the date of this order 17 and inform this court within thirty (30) days of a final decision by the state court on his 18 | exhaustion petition. 19 IT IS SO ORDERED. 20 aX ~ f 4? Fa / 21 game rot 7 | Dated: July 13, 2022 UNITED STATES DISTRICT JUDGE 23 2419 The Rhines analysis conducted above also strongly favors the issuance of the requested stay 25 under the court’s inherent power to manage its dockets and stay proceedings. See Ryan v. Gonzales, 568 U.S. 57, 73-74 (2013) (citing Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). 26 | Particularly, on the facts and circumstances of this case, granting a stay of these federal habeas proceedings pending exhaustion will eliminate the possibility of piecemeal litigation, see 27 | Calderon v. United States District Court (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998), 28 abrogated on other grounds by Jackson, 425 F.3d at 660-62, and will also promote comity, see Lundy, 455 US. at 518.

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