(DP) Harris v. Davis

• Court: District Court, E.D. California
• Decided: July 6, 2020
• Docket: 1:16-cv-01572
• Status: Unknown

Opinion

1 2

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

10 WILLIE LEO HARRIS, Case No. 1:16-cv-01572-DAD

11 Petitioner, DEATH PENALTY CASE

12 v. ORDER HOLDING FEDERAL PROCEEDINGS IN ABEYANCE DURING 13 RON DAVIS, Warden of the California State PENDENCY OF STATE EXHAUSTION Prison at San Quentin, PROCEEDINGS 14 Respondent. 15

16 17 This matter is before the court following its December 5, 2018 order (Doc. No. 64) on 18 the stipulation of the parties that respondent show cause why petitioner should not be granted a 19 stay of these federal habeas proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005) in 20 order to allow him to exhaust in state court the unexhausted claims asserted in his mixed 21 petition filed with this court on March 30, 2018.1 22 Respondent, through his counsel Deputy Attorney General Amanda Cary, filed a 23 response to the order to show cause on January 30, 2019. Petitioner, through appointed 24 counsel Saor Stetler and Richard Novak, replied to the response on February 28, 2019. 25 Respondent filed a sur-reply on March 22, 2019. 26 ///// 27 ///// 1 The court finds the matter amenable to decision without a hearing. Upon considering 2 the parties’ filings and the record, and for the reasons explained below, the court finds good 3 cause to hold these federal habeas proceedings in abeyance. 4 BACKGROUND AND PROCEDURAL HISTORY 5 On June 30, 1999, petitioner was convicted in Kern County Superior Court of first- 6 degree murder with special circumstances of robbery and rape, robbery, rape, theft, and arson 7 in the May 20, 1997 killing of college student Alicia Manning in her Bakersfield apartment. 8 On July 6, 1999, the same jury returned a verdict of death. 9 On August 24, 1999, the trial court denied modification of the verdict, sentenced 10 petitioner to death and imposed a determinate sentence on the remaining counts and 11 enhancements. 12 On August 26, 2013, petitioner’s conviction was affirmed on automatic appeal to the 13 California Supreme Court. People v. Harris, 57 Cal. 4th 804 (2013). On June 23, 2014, the 14 United States Supreme Court denied certiorari. Harris v. California, 573 U.S. 936 (2014). 15 On September 21, 2016, the California Supreme Court summarily denied petitioner’s 16 petition for writ of habeas corpus, denying relief as to all of his claims on the merits and, as to 17 certain claim(s), on procedural grounds. In re Harris, Case No. S187337. 18 On October 18, 2016, petitioner commenced this federal habeas proceeding. He filed 19 his habeas corpus petition pursuant to 28 U.S.C. § 2254 on March 30, 2018, therein alleging 20 forty-five claims including subclaims. 21 LEGAL STANDARDS 22 A federal court will not grant a state prisoner’s application for a writ of habeas corpus 23 unless “the applicant has exhausted the remedies available in the courts of the State.” 28 24 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by fully and fairly 25 presenting to the highest state court all federal claims before presenting those claims for relief 26 to the federal court. Picard v. Connor, 4040 U.S. 270, 276; Baldwin v. Reese, 541 U.S. 27, 29 27 (2004); Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). 1 Stay and abeyance of a federal habeas petition that includes both exhausted and 2 unexhausted claims is appropriate in “limited circumstances” where: (i) “the petitioner has 3 good cause for his failure to exhaust,” (ii) “his unexhausted claims are potentially meritorious,” 4 and (iii) “there is no indication that the petitioner engaged in intentionally dilatory litigation 5 tactics.” Rhines, 544 U.S. at 277-78; see also Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) 6 (holding that fully unexhausted petitions may be stayed pursuant to Rhines where these same 7 requirements are met). Such a stay allows state courts the first opportunity to consider and 8 address a state prisoner’s habeas corpus claims. Rhines, 544 U.S. at 273-74 (citing Rose v. 9 Lundy, 455 U.S. 509, 518-19 (1982)); King v. Ryan, 564 F.3d 1133, 1138 (9th Cir. 2009) 10 (“Habeas petitioners have long been required to adjudicate their claims in state court - that is, 11 ‘exhaust’ them before seeking relief in federal court.”). 12 The decision whether to grant a Rhines stay is subject to the discretion of the district 13 court. Rhines, 544 U.S. at 276; see also Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) 14 (when the three Rhines factors are satisfied, however, “it likely would be an abuse of discretion 15 for a district court to deny a stay[.]”). 16 DISCUSSION 17 A. Good Cause 18 The existence of “good cause” in the context of a Rhines stay turns on whether the 19 petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify a 20 failure to exhaust. Jackson, 425 F.3d at 661-62 (The “good cause” requirement does not 21 require a showing of “extraordinary circumstances.”); see also Pace v. DiGuglielmo, 544 U.S. 22 408, 416-17 (2005) (reasonable confusion about timeliness of a state filing ordinarily 23 constitutes good cause); Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014) (a “legitimate 24 reason” for the failure to exhaust satisfies the equitable “good cause” element of the Rhines 25 test). 26 The Ninth Circuit Court of Appeals has observed that:

27 The caselaw concerning what constitutes “good cause” under Rhines has not been developed in great detail. Blake v. Baker, 1 what constitutes good cause to excuse a petitioner's failure to exhaust.”). 2 * * * 3 We do know, however, that a petitioner has been found to 4 demonstrate “good cause” where he meets the good cause standard announced in Martinez v. Ryan, 566 U.S. 1 (2012). 5 Blake, 745 F.3d at 983–84. Martinez carved out an exception to the general rule, stated in Coleman v. Thompson, 501 U.S. 722, 6 753-54 (1991), that “ignorance or inadvertence” on the part of a petitioner’s post-conviction counsel does not constitute cause to 7 excuse a procedural default of a claim. Specifically, the Martinez Court concluded that “[w]here, under state law, claims 8 of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not 9 bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral 10 proceeding, there was no counsel or counsel in that proceeding was ineffective.” Martinez, 132 S. Ct. at 1320. 11 In Blake, we concluded that the ineffective assistance of post- 12 conviction counsel could constitute good cause for a Rhines stay, provided that the petitioner’s assertion of good cause “was not a 13 bare allegation of state post-conviction [ineffective assistance of counsel], but a concrete and reasonable excuse, supported by 14 evidence.” Blake, 745 F.3d at 983. The court further observed that “good cause under Rhines, when based on [ineffective 15 assistance of counsel], cannot be any more demanding than a showing of cause under Martinez to excuse state procedural 16 default.” Id. at 983–84. We emphasized, in response to the idea that ineffective assistance of post-conviction counsel could 17 always be raised, that Rhines's requirement that claims not be plainly meritless and that the petitioner not engage in dilatory 18 litigation tactics “are designed ... to ensure that the Rhines stay and abeyance is not . . . available in virtually every case,” id. at 19 982. 20 Dixon v. Baker, 847 F.3d 714, 720-21 (9th Cir. 2017); see also Blake, 745 F.3d at 983-84. 21 Here, petitioner argues that the ineffective assistance of post-conviction counsel by that 22 counsel’s failure to investigate, develop and present his intellectual disabilities and mental 23 impairments to the state court as claimed ineffective assistance of trial counsel (see 24 unexhausted federal claim 11.C.14) and substantive incompetence to stand trial (see 25 unexhausted federal claim 13), provides excuse and good cause for his failure to exhaust the 26 unexhausted claims contained in his mixed petition. (Doc. No. 66 at 4-5; see also Doc. No. 37- 27 5 at 160-64, 214-19; Doc. No. 48-2 at 16; Doc. No. 57 at 326-30); see Blake, 745 F.3d at 982- 83; Douglas v. Woodford, 316 F.3d 1079, 1085 (9th Cir. 2003)) (“[t]rial counsel has a duty to 1 investigate a defendant’s mental state if there is evidence to suggest that the defendant is 2 impaired.”). 3 Petitioner supports this argument by pointing to evidence in the state record that 4 notwithstanding awareness of indicia of his intellectual disabilities and mental impairments, his 5 post-conviction counsel Barry Karl failed to: (i) retain mental health expertise to opine 6 thereon, (see Doc. No. 66 at 4-5; see also Doc. No. 48-2 at 16), and (ii) develop and present the 7 above noted unexhausted claims. (See Doc. No. 66 at 4-5; Blake, 745 F.3d at 982-83; Dixon, 8 847 F.3d at 716; see also Doc. No. 57 at 175-80, 326-30 (citing Penal Code §§ 1367, 1368); 9 Strickland v. Washington, 466 U.S. 668, 687-92 (1984) (ineffective assistance of counsel has 10 two components, deficient performance and prejudice therefrom)).2 11 Respondent counters that petitioner has not shown that “[his] failure to exhaust resulted 12 from any external objective factor that cannot fairly be attributed to him.” (Doc. No. 67 at 5.) 13 Respondent argues that the allegations of ineffective assistance by post-conviction counsel are 14 merely conclusory, “bald assertion[s]” unsupported by evidence. (Doc. No. 65 at 4-5 (citing 15 Doc. No. 57 at 325, 328); see also Doc. No. 67 at 4-5 (citing Blake, 745 F.3d at 982 and 16 Wooten, 540 F.3d at 1024 n.2 (no good cause where ineffective assistance claim was 17 undeveloped).)3 Respondent observes that petitioner’s post-conviction counsel has not 18 provided a supporting habeas declaration nor has petitioner explained his prior counsel’s 19 failure to do so. (See Doc. No. 65 at 4 (citing Lisea v. Sherman, No. 2:14-CV-1766 CKD P, 20 2014 WL 4418632, at *3 (E.D. Cal. Sept. 8, 2014) (denying a motion for stay and abeyance 21 because the petitioner presented no evidence in support of his contention that appellate counsel 22 was ineffective in failing to raise certain claims)). 23 The court concludes that petitioner has satisfied the applicable standard by showing 24 good cause for the granting of stay and abeyance under Rhines. See Blake, 745 F.3d at 983-84 25 & n.7. In this regard, petitioner need not prove ineffective assistance by his post-conviction 26

27 2 Any reference to state law is to California law unless otherwise noted. 1 counsel in order to be entitled to such a stay. See e.g., Ervine v. Warden, San Quentin State 2 Prison, No. 2:15-CV-1916 TLN DB, 2018 WL 372754, at *3 (E.D. Cal. Jan. 10, 2018), report 3 and recommendation adopted, No. 2:15-CV-01916-TLN-DB, 2018 WL 1173959 (E.D. Cal. 4 Mar. 6, 2018). Under Blake, petitioner need only provide a “concrete and reasonable excuse, 5 supported by evidence” that his post-conviction counsel failed to discover, investigate, and 6 present to the state courts the new claim. 745 F.3d at 983-84; see also Martinez, 566 U.S. at 7 14. 8 Here, petitioner has made more than make a “bare allegation” of ineffective assistance 9 by his post-conviction counsel. Blake, 745 F.3d at 983. He has provided a reasonable excuse 10 by specifically identifying post-conviction counsel’s failure to independently investigate, 11 discover, develop and present then available facts supporting colorable claims based upon 12 incompetence to stand trial. 13 Post-conviction counsel Karl was aware of indicia of petitioner’s incompetence. 14 Indeed, counsel alleged in the state habeas petition filed on petitioner’s behalf that “petitioner 15 suffered from depression, heard voices, and may also have been bipolar [that his] [f]ull [s]cale 16 IQ was in the 70’s, [that] he may have suffered a brain injury resulting in impairment, and/or 17 [that] he may have been exposed to pre-natal alcohol consumed by his mother.” (Doc. No. 37- 18 5 at 104.) Attorney Karl relied upon such evidence when he presented in state court an 19 unsuccessful habeas execution ineligibility [Atkins] claim, in which he asserted that: 20 [Petitioner’s] lifelong affliction with mental retardation and neuro-cognitive and medical deficits and disabilities rendered 21 him unable to understand and process information, to cooperate with and assist his counsel, and to understand the charges and the 22 proceedings against him with the constitutionally requisite capacity throughout. Further, petitioner’s deficits rendered him 23 unable to engage in logical reasoning, attend to, comprehend and remember events and information, and to plan and control his 24 behavior. 25 (Doc. No. 37-5 at 160); see also Steinsvik v. Vinzant, 640 F.2d 949, 954 (9th Cir. 1981) (citing 26 Zapata v. Estelle, 588 F.2d 1017, 1021-22 (5th Cir. 1979) (“Even where the evidence before 27 the trial judge was insufficient to raise a good faith doubt with respect to Steinsvik’s 1 incompetent.”). Elsewhere in the state habeas petition he filed on petitioner’s behalf, attorney 2 Karl noted petitioner’s “myriad” of mental impairments including neurological, physiological 3 and psychological deficits that left him “unable to fully aid and assist in his defense[.]” (Doc. 4 No. 37-5 at 215-16; see also id., at 160-65); 5 Relatedly, penalty phase defense expert, Dr. Cecil Whiting, a clinical psychologist who 6 examined the then thirty (30) year-old petitioner prior to trial and interviewed members of his 7 family (see Doc. No. 35-5 at 62-95; Doc. No. 37-5 at 103) testified that petitioner suffered at 8 least “some mental impairment[,]” albeit “none that was substantial.” (Id.) 9 Petitioner’s penalty phase counsel Gael Mueller provided a state habeas declaration 10 attesting to her review of “an evaluation of petitioner by a[n] [unidentified] qualified expert 11 who administered a full battery of standard neuropsychological tests” suggesting petitioner (i) 12 had a full-scale IQ in the 70’s, (ii) suffered potential learning disabilities and memory 13 impairment with reading and spelling skills at the sixth-grade level, and (iii) demonstrated low 14 to borderline intellectual functioning. (Doc. No. 48-2 at 16; see also Doc. No. 35-5 at 62-95; 15 Doc. No. 37-5 at 162-164; Doc. No. 48-3 at 93; Doc. No. 57 at 64-65, 174-75, 303, 317.) 16 Attorney Mueller also averred that during her investigation, she became aware of petitioner’s 17 possible pre-natal alcohol exposure and exposure to environmental toxins, drugs and alcohol 18 during his youth; possible brain damage and bi-polar disorder; and reported jailhouse psychotic 19 and schizoaffective symptoms including paranoia and auditory hallucinations for which he 20 received anti-psychotics and anti-depressants. (Doc. No. 48-2 at 16-19; see also Doc. No. 26-2 21 at 102-38; Doc. No. 53-1 at 249-54; Doc. No. 53-2 at 7-108; Doc. No. 57 at 116-17, 167.) 22 The state record reflects that attorney Karl did not retain a qualified mental health 23 expert to develop the then available mental state evidence. (See e.g. Doc. No. 67 at 5 (citing 24 Blake, 745 F.3d at 979, 983 (good cause for failure to exhaust found where counsel was 25 ineffective by failing to present medical reports and declarations from a private investigator, 26 family and friends); Penal Code § 1376 (precluding trial of the mentally incompetent); In re 27 Hawthorne, 35 Cal. 4th 40, 47-49 (2005) (providing that post-conviction claims of execution 1 setting forth the factual basis for a finding of significantly subaverage intellectual functioning 2 and deficiencies in adaptive behavior)).4 Attorney Karl’s suggestion that he lacked funds to 3 retain mental health expertise appears to be unaccompanied by evidence of reasonable efforts 4 undertaken to obtain state habeas funding for such investigation and discovery. (Doc. No. 37-5 5 at 160-64, 214-19, 234-35; Doc. No. 37-7 at 107, 114.) 6 Although petitioner has not provided a habeas declaration from his post-conviction 7 counsel in support of his showing of good cause for the granting of stay and abeyance, the 8 absence of such a declaration is not alone a basis to discount his good cause proffer. See Davis 9 v. Davis, No. C-13-0408 EMC, 2015 WL 4512309, at *4 (N.D. Cal. July 24, 2015) (noting the 10 absence of a requirement that ineffective assistance claims be supported by declarations from 11 counsel); cf., Barrera v. Muniz, No. 2:14-CV-2260 JAM DAD P, 2015 WL 4488235, at *3 12 (E.D. Cal. July 23, 2015), report and recommendation adopted, 2015 WL 6736813 (E.D. Cal. 13 Nov. 4, 2015) (no good cause found where petitioner submitted no evidence in support of 14 ineffective assistance of counsel); Lisea, 2014 WL 4418632, at *3 (denying a motion for stay 15 and abeyance because the petitioner presented no evidence in support of his contention that his 16 appellate counsel was ineffective in failing to raise certain claims). 17 B. Potentially Meritorious Claim 18 The second factor to be considered under Rhines is whether an unexhausted claim is 19 “potentially meritorious.” A federal habeas petitioner need only show that one of his 20 unexhausted claims is not “plainly meritless” in order to obtain a stay under Rhines. 544 U.S. 21 at 277; see also Dixon, 847 F.3d at 722. In determining whether a claim is “plainly meritless,” 22 principles of comity and federalism demand that the federal court refrain from ruling on the 23 merits of the claim unless “it is perfectly clear that the petitioner has no hope of prevailing.” 24 Dixon, 847 F.3d at 722 (quoting Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005)). “A 25 contrary rule would deprive state courts of the opportunity to address a colorable federal claim 26 in the first instance and grant relief if they believe it is warranted.” Id. (quoting Cassett, 406 27 F.3d at 624) (citing Lundy, 455 U.S. at 515). 1 Here, petitioner argues that the noted evidence of petitioner’s intellectual, mental, and 2 adaptive disabilities suggests a reasonable doubt as to his competency to stand trial, i.e., his 3 ability to understand his criminal proceedings and rationally consult with his trial counsel. 4 Respondent does not address the merits of petitioner’s unexhausted claims, thereby at least 5 inferentially suggesting that those claims for habeas relief are appropriately addressed on their 6 merits following their exhaustion, if necessary. (See Doc. Nos. 65 & 67.) 7 The court concludes that petitioner has adequately established that at least one of his 8 unexhausted claims is potentially meritorious for purposes of assessing whether he is entitled 9 to a stay under Rhines. The court notes in this regard that the Ninth Circuit made clear in 10 Dixon that the federal court should not usurp the state court’s right to first address the merits of 11 a “colorable federal claim.” Id. 12 In this vein, petitioner’s unexhausted claims 11.C.14 and 13 are at least “colorable” and 13 cannot be said to be “hopeless.” See Cruz v. Mitchell, No. 13-CV-02792-JST, 2015 WL 14 78779, at *3 (N.D. Cal. Jan. 5, 2015) (petitioner’s unexhausted claims are potentially 15 meritorious where they are not “vague, conclusory, or patently frivolous.” These claims 16 appear to be “well-supported by specific averments and numerous exhibits” and by “relevant 17 legal authority” and “such evidence and offers of proof as are presently available to him.” Id. 18 For example, petitioner alleges in his claim 11.C.14 that his trial counsel was ineffective at the 19 guilt phase of his trial by failing to investigate and present evidence that petitioner was 20 incompetent by virtue of intellectual disability and that he had been diagnosed with a 21 schizoaffective disorder and suffered hallucinations, possible brain injury and a cognitive 22 disorder. (See Doc. No. 48-2 at 16; Doc. No. 37-5; Doc. No. 57 at 178-80.) Petitioner alleges 23 in his claim 13 that during trial, appellate and post-conviction proceedings, by virtue of his 24 mental illnesses and impairments and intellectual deficits, he was incompetent and remains so. 25 Petitioner points to facts suggesting a family and personal history of substance abuse, and that 26 he suffered hallucinations and perceptual disturbances before and after his arrest on capital 27 charges. These allegations are specific and supported by citations to the state record and the 1 standard for competence to stand trial is whether a defendant has sufficient present ability to 2 consult with his lawyer with a reasonable degree of rational understanding and has a rational as 3 well as factual understanding of the proceedings against him.”). 4 Petitioner’s apparent level of functionality during his trial proceedings (see Doc. No. 48- 5 2 at 16, wherein attorney Mueller notes petitioner’s apparent “verbal adeptness”) is not alone sufficient 6 to show competency at this early stage of these habeas proceedings. See Pate v. Robinson, 383 7 U.S. 375, 384-86 (1966) (courtroom demeanor and apparent lucidity alone are insufficient to 8 show competency to stand trial). Nor is the seeming substantiality of the state habeas petition 9 alone a measure of the objective reasonableness of attorney Karl’s performance. (See Doc. 10 No. 37-5; Jones v. Barnes, 463 U.S. 745, 751-54 (1983) (post-conviction counsel does not 11 have a duty to raise every non-frivolous or weak issue).) 12 C. Intentionally Dilatory Tactics 13 The final Rhines factor directs the court to consider whether petitioner has engaged in 14 “intentionally dilatory tactics.”5 15 Petitioner supports his diligence by arguing that: (i) he signed his request for 16 appointment of federal habeas counsel less than two weeks after the denial of his state habeas 17 petition; (ii) he filed his federal habeas petition within the time allowed under this court’s 18 scheduling orders; (iii) any delay in the resolution of his state habeas claims, which were 19 denied six years after his state habeas petition was filed, is attributable to the California 20 Supreme Court; (iv) he reasonably awaited this court’s identification of unexhausted claims 21 before seeking a return to state court to exhaust unexhausted claims; and (v) given his 22 “substantial impairments, any shortcoming of his prior counsel should not be attributed to 23 him.” (Doc. No. 66 at 6-8.) 24 Respondent does not argue otherwise and therefore appears to concede that petitioner 25 has not engaged in intentionally dilatory tactics. (See Doc. Nos. 65 & 67.) 26 The court find nothing in the record suggesting that petitioner here has engaged in 27 “intentionally dilatory litigation tactics,” either prior to or after the filing of his federal habeas 1 petition. It has been observed that “[i]t is reasonable to wait to return to state court until 2 respondent has made his position [on] exhaustion known and th[e] court identifies which 3 claims are exhausted and which are unexhausted.” Leonard v. Davis, No. 2:17-CV-0796- 4 JAM-AC DP, 2019 WL 1772390, at *5 (E.D. Cal. Apr. 23, 2019), report and recommendation 5 adopted, No. 2:17-CV-0796-JAM-AC DP, 2019 WL 2162980 (E.D. Cal. May 17, 2019). 6 Here, petitioner has been following this court’s case management requirements in litigating this 7 habeas action. Finally, the court notes that it has previously found that petitioner had been 8 pursuing his federal rights diligently when it twice granted him equitable tolling. (Doc. No. 24 9 at 5; Doc. No. 47 at 12-13.) 10 CONCLUSION 11 For the reasons explained above, the court finds that: (1) petitioner has established 12 good cause for a stay of these proceedings based on his showing that post-conviction counsel 13 in state court could have, but failed to, raise his unexhausted claims; (2) at least one of his 14 unexhausted claims is potentially meritorious6; and (3) there is no indication before the court 15 that petitioner has acted in an intentionally dilatory fashion.7 See Rhines, 544 U.S. at 278; 16 Mena, 813 F.3d at 910. 17 ///// 18 ///// 19 /////

20 6 In light of this determination, the court need not determine whether a Rhines stay is 21 appropriate as to each of petitioner’s unexhausted claims. “One claim requiring a stay acts as an umbrella for all claims.” Horning v. Martel, No. 2:10-CV-1932 JAM GGH DP, 2011 WL 22 5921662, at *3 (E.D. Cal. Nov. 28, 2011), findings and recommendations adopted, 2012 WL 163784 (Jan. 19, 2012); Jackson v. CSP-Solano, No. 2:14-CV-2268 MCE-DBP, 2017 WL 23 404583, at *5 (E.D. Cal. Jan. 30, 2017), report and recommendation adopted 2017 WL 896325 (E.D. Cal. Mar. 6, 2017) (same). 24

7 The Rhines analysis would also support the issuance of the requested stay pursuant to the 25 court’s inherent power to manage its dockets and stay proceedings. See Ryan v. Gonzales, 568 26 U.S. 57, 73-74 (2013) (citing Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). Particularly under on the facts and circumstances of this case, granting a stay pending exhaustion 27 eliminates the possibility of piecemeal litigation, see Calderon v. United States District Court (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998), abrogated on other grounds by Jackson, 425 WAS 1.4 UV VEY POORLY PVOEUPIOCTI PR PN ie OY te VI te

1 Because petitioner has satisfied the requirements in order for a stay under Rhines, the 2 | instant proceeding should be stayed and held in abeyance pending exhaustion of his 3 | unexhausted claims in state court.® 4 Even so, a stay pending exhaustion of unexhausted claims may not be indefinite or 5 | without reasonable time limits for petitioner’s return to state court. Rhines, 544 U.S. at 277- 6 | 78. Although the duration of the stay of these federal habeas proceedings is dependent upon 7 | how long the exhaustion petition is pending before the state courts, it will conclude upon the 8 | rendering of a final decision in state court on petitioner’s exhaustion petition filed in state 9 | court. 10 Accordingly: 11 1. Petitioner’s request for the issuance of a stay is granted and these proceedings are 12 held in abeyance while petitioner exhausts his unexhausted claims in state court 13 2. Petitioner is directed to pursue state court exhaustion without delay and to file in 14 this court, within thirty (30) days after the filing date of the California Supreme 15 Court’s final order resolving petitioner’s unexhausted claims, a motion to lift the 16 stay in this action; and 17 3. The Clerk of the Court be directed to administratively close this case for the 18 duration of the stay. 19 0 IT IS SO ORDERED. ~ ‘i 21 Dated: _ July 2, 2020 Ae 1" UNITED STATES DISTRICT JUDGE

23 24 25 26 27 28 Of course, the court expresses no opinion on the ultimate merits of petitioner’s unexhausted claims.