1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME BUTLER, No. 2:21-cv-0032-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 GISELLE MATTESON, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding with counsel with a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The petition was filed on January 6, 2021. ECF No. 1. 19 The same day, petitioner’s counsel filed a motion to stay the case, because petitioner, whose state 20 criminal case has not yet become final, has not exhausted his claims in state court as required by 21 28 U.S.C. § 2254(b). ECF No. 2. Respondent opposes the stay. ECF No. 8. 22 I. Governing Law 23 Exhaustion of state remedies requires that petitioners fairly present federal claims to the 24 highest state court, either on direct appeal or through state collateral proceedings, in order to give 25 the highest state court “the opportunity to pass upon and correct alleged violations of its 26 prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations 27 omitted). “[A] state prisoner has not ‘fairly presented’ (and thus exhausted) his federal claims in 28 state court unless he specifically indicated to that court that those claims were based on federal 1 law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 904 (9th Cir. 2 2000). “[T]he petitioner must make the federal basis of the claim explicit either by citing federal 3 law or the decisions of federal courts, even if the federal basis is self-evident . . . .” Id. (citations 4 omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“[A] claim for relief in 5 habeas corpus must include reference to a specific federal constitutional guarantee, as well as a 6 statement of the facts that entitle the petitioner to relief.”); Duncan, 513 U.S. at 365-66 (to 7 exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are asserting 8 claims under the United States Constitution.”). 9 In addition to identifying the federal basis of his claims in the state court, the petitioner 10 must also fairly present the factual basis of the claim in order to exhaust it. Baldwin v. Reese, 541 11 U.S. 27, 29 (2004); Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir. 2010). “[T]he petitioner 12 must . . . provide the state court with the operative facts, that is, ‘all of the facts necessary to give 13 application to the constitutional principle upon which [the petitioner] relies.’” Davis v. Silva, 511 14 F.3d 1005, 1009 (9th Cir. 2008) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 15 1958)). 16 Where a federal habeas petitioner has failed to exhaust a claim in the state courts 17 according to these principles, a court will generally dismiss the petition without prejudice, 18 allowing the petitioner to return to state court to exhaust the claim and then refile the federal 19 petition. Rhines v. Weber, 544 U.S. 269, 274 (2005). Alternatively, the petitioner may ask the 20 federal court to stay its consideration of the petition while she returns to state court to complete 21 exhaustion. Two procedures may be used in staying a petition — one provided for by Kelly v. 22 Small, 315 F.3d 1063 (9th Cir. 2002) and the other by Rhines. King v. Ryan, 564 F.3d 1133, 23 1138-41 (9th Cir. 2009). Under the Kelly procedure, the district court may stay a petition 24 containing only exhausted claims and hold it in abeyance pending exhaustion of additional claims 25 which may then be added to the petition through amendment. Kelly, 315 F.3d at 1070-71; King, 26 564 F.3d at 1135. If the federal petition contains both exhausted and unexhausted claims (a so- 27 called “mixed” petition), a petitioner seeking a stay under Kelly must first dismiss the 28 unexhausted claims from the petition and seek to add them back in through amendment after 1 exhausting them in state court. King, 564 F.3d at 1138-39. The previously unexhausted claims, 2 once exhausted, must be added back into the federal petition within the statute of limitations 3 provided for by 28 U.S.C. § 2244(d)(1), however. King, 564 F.3d at 1140-41. Under that statute, 4 a one-year limitation period for seeking federal habeas relief begins to run from the latest of the 5 date the judgment became final on direct review, the date on which a state-created impediment to 6 filing is removed, the date the United States Supreme Court makes a new rule retroactively 7 applicable to cases on collateral review or the date on which the factual predicate of a claim could 8 have been discovered through the exercise of due diligence. 28 U.S.C. § 2241(d)(1). A federal 9 habeas petition does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. 10 Walker, 533 U.S. 167, 181-82 (2001). 11 Under Rhines, a district court may stay a mixed petition in its entirety, without requiring 12 dismissal of the unexhausted claims, while the petitioner attempts to exhaust them in state court. 13 King, 564 F.3d at 1139-40. Unlike the Kelly procedure, however, Rhines requires that the 14 petitioner show good cause for failing to exhaust the claims in state court prior to filing the 15 federal petition. Rhines, 544 U.S. at 277-78; King, 564 F.3d at 1139. In addition, a stay pursuant 16 to Rhines is inappropriate where the unexhausted claims are “plainly meritless” or where the 17 petitioner has engaged in “abusive litigation tactics or intentional delay.” Id. The U.S. Court of 18 Appeals for the Ninth Circuit has held that the petitions raising entirely unexhausted claims may 19 also be stayed under the Rhines procedure. Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016). 20 Rhines did not describe the criteria for determining whether good cause for failure to 21 exhaust exists. The Ninth Circuit has found that good cause does not require a showing of 22 “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). A 23 petitioner shows good cause by providing the court with a reasonable excuse, supported by 24 evidence, that justifies the failure to exhaust. Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). 25 See also Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (“A petitioner’s reasonable confusion . . 26 . will ordinarily constitute ‘good cause’ [under Rhines]. . . .”); Dixon v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEROME BUTLER, No. 2:21-cv-0032-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 GISELLE MATTESON, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding with counsel with a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The petition was filed on January 6, 2021. ECF No. 1. 19 The same day, petitioner’s counsel filed a motion to stay the case, because petitioner, whose state 20 criminal case has not yet become final, has not exhausted his claims in state court as required by 21 28 U.S.C. § 2254(b). ECF No. 2. Respondent opposes the stay. ECF No. 8. 22 I. Governing Law 23 Exhaustion of state remedies requires that petitioners fairly present federal claims to the 24 highest state court, either on direct appeal or through state collateral proceedings, in order to give 25 the highest state court “the opportunity to pass upon and correct alleged violations of its 26 prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations 27 omitted). “[A] state prisoner has not ‘fairly presented’ (and thus exhausted) his federal claims in 28 state court unless he specifically indicated to that court that those claims were based on federal 1 law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 904 (9th Cir. 2 2000). “[T]he petitioner must make the federal basis of the claim explicit either by citing federal 3 law or the decisions of federal courts, even if the federal basis is self-evident . . . .” Id. (citations 4 omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“[A] claim for relief in 5 habeas corpus must include reference to a specific federal constitutional guarantee, as well as a 6 statement of the facts that entitle the petitioner to relief.”); Duncan, 513 U.S. at 365-66 (to 7 exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are asserting 8 claims under the United States Constitution.”). 9 In addition to identifying the federal basis of his claims in the state court, the petitioner 10 must also fairly present the factual basis of the claim in order to exhaust it. Baldwin v. Reese, 541 11 U.S. 27, 29 (2004); Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir. 2010). “[T]he petitioner 12 must . . . provide the state court with the operative facts, that is, ‘all of the facts necessary to give 13 application to the constitutional principle upon which [the petitioner] relies.’” Davis v. Silva, 511 14 F.3d 1005, 1009 (9th Cir. 2008) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 15 1958)). 16 Where a federal habeas petitioner has failed to exhaust a claim in the state courts 17 according to these principles, a court will generally dismiss the petition without prejudice, 18 allowing the petitioner to return to state court to exhaust the claim and then refile the federal 19 petition. Rhines v. Weber, 544 U.S. 269, 274 (2005). Alternatively, the petitioner may ask the 20 federal court to stay its consideration of the petition while she returns to state court to complete 21 exhaustion. Two procedures may be used in staying a petition — one provided for by Kelly v. 22 Small, 315 F.3d 1063 (9th Cir. 2002) and the other by Rhines. King v. Ryan, 564 F.3d 1133, 23 1138-41 (9th Cir. 2009). Under the Kelly procedure, the district court may stay a petition 24 containing only exhausted claims and hold it in abeyance pending exhaustion of additional claims 25 which may then be added to the petition through amendment. Kelly, 315 F.3d at 1070-71; King, 26 564 F.3d at 1135. If the federal petition contains both exhausted and unexhausted claims (a so- 27 called “mixed” petition), a petitioner seeking a stay under Kelly must first dismiss the 28 unexhausted claims from the petition and seek to add them back in through amendment after 1 exhausting them in state court. King, 564 F.3d at 1138-39. The previously unexhausted claims, 2 once exhausted, must be added back into the federal petition within the statute of limitations 3 provided for by 28 U.S.C. § 2244(d)(1), however. King, 564 F.3d at 1140-41. Under that statute, 4 a one-year limitation period for seeking federal habeas relief begins to run from the latest of the 5 date the judgment became final on direct review, the date on which a state-created impediment to 6 filing is removed, the date the United States Supreme Court makes a new rule retroactively 7 applicable to cases on collateral review or the date on which the factual predicate of a claim could 8 have been discovered through the exercise of due diligence. 28 U.S.C. § 2241(d)(1). A federal 9 habeas petition does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. 10 Walker, 533 U.S. 167, 181-82 (2001). 11 Under Rhines, a district court may stay a mixed petition in its entirety, without requiring 12 dismissal of the unexhausted claims, while the petitioner attempts to exhaust them in state court. 13 King, 564 F.3d at 1139-40. Unlike the Kelly procedure, however, Rhines requires that the 14 petitioner show good cause for failing to exhaust the claims in state court prior to filing the 15 federal petition. Rhines, 544 U.S. at 277-78; King, 564 F.3d at 1139. In addition, a stay pursuant 16 to Rhines is inappropriate where the unexhausted claims are “plainly meritless” or where the 17 petitioner has engaged in “abusive litigation tactics or intentional delay.” Id. The U.S. Court of 18 Appeals for the Ninth Circuit has held that the petitions raising entirely unexhausted claims may 19 also be stayed under the Rhines procedure. Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016). 20 Rhines did not describe the criteria for determining whether good cause for failure to 21 exhaust exists. The Ninth Circuit has found that good cause does not require a showing of 22 “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). A 23 petitioner shows good cause by providing the court with a reasonable excuse, supported by 24 evidence, that justifies the failure to exhaust. Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). 25 See also Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (“A petitioner’s reasonable confusion . . 26 . will ordinarily constitute ‘good cause’ [under Rhines]. . . .”); Dixon v. Baker, 847 F.3d 714, 721- 27 22 (9th Cir. 2014) (lack of counsel in state post-conviction proceedings constitutes good cause 28 under Rhines). 1 II. Analysis 2 Petitioner’s rationale for filing this action before his state criminal proceedings have even 3 concluded is not clear. He argues that there is good cause under Rhines for staying the case 4 because “the California Court of Appeal affirmed the judgment [of conviction], except that it 5 remanded in part to allow the trial court to exercise its discretion whether to dismiss the 6 enhancements pursuant to Senate Bill 1393 and Senate Bill 620” and because state proceedings 7 are ongoing, the AEDPA limitations period has not begun. ECF No. 2 at 3. How these facts 8 demonstrate “a reasonable excuse” supported by evidence is unclear. 9 As respondent points out, the U.S. Supreme Court has instructed that stay and abey orders 10 “should be available only in limited circumstances.” Rhines, 544 U.S. at 277. Thus, the court 11 must not construe “good cause” in such a way that stay orders under Rhines are routine. Wooten 12 v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008). Granting a stay where petitioner’s criminal 13 proceedings have not even become final would open the door to routine preemptively-filed 14 federal petitions and would run contrary to the AEDPA goals identified by the Court in Rhines. 15 544 U.S. at 276-77 (two goals of AEDPA are: (1) reducing delays in executing state and federal 16 criminal sentences and (2) streamlining federal habeas proceedings by increasing a petitioner's 17 incentive to exhaust all claims in state court). Petitioner has not shown good cause for a stay. 18 III. Recommendation and Order 19 For the foregoing reasons, it is hereby ORDERED that the Clerk shall randomly assign a 20 United States District Judge to this action. 21 Further, it is RECOMMENDED that petitioner’s January 6, 2021 motion to stay (ECF No. 22 2) be denied and the petition be dismissed without prejudice for failure to exhaust state remedies. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 28 shall be served and filed within fourteen days after service of the objections. Failure to file 1 | objections within the specified time may waive the right to appeal the District Court’s order. 2 || Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 3 || 1991). In his objections petitioner may address whether a certificate of appealability should issue 4 | in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 5 || 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 6 || final order adverse to the applicant). 7 || Dated: April 5, 2021. Lh: lea heh bie EDMUND F. BRENNAN 9 UNITED STATES MAGISTRATE JUDGE 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28