Tucker v. Warden

Filing 12

ORDER signed by Magistrate Judge Kendall J. Newman on 5/10/18 GRANTING 11 Motion to Stay. Within 30 days from the date the California Supreme Court issue a final order resolving the unexhausted claims, petitioner shall file in this court a motion to lift the stay. The clerk of the court is directed to administratively terminate this action. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY ALLEN TUCKER,

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Petitioner,

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No. 2:18-cv-0035 TLN KJN P

v.

ORDER

WARDEN, SACRAMENTO STATE
PRISON,
Respondent.

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I. Introduction
Petitioner is a state prisoner, proceeding pro se and in forma pauperis, with a petition for

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writ of habeas corpus under 28 U.S.C. § 2254. Petitioner filed a motion for stay and abeyance of

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this action under Rhines v. Weber, 544 U.S. 269 (2005) (“Rhines”). As set forth below,

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petitioner’s motion is granted.1

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II. Petitioner’s Arguments
Petitioner states that he is in the process of exhausting the instant claims in the California

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Supreme Court; his petition was filed on January 29, 2018, Case No. S246809. Petitioner seeks

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to stay his federal habeas petition until the California Supreme Court issues its decision, and

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By this order, the undersigned makes no finding as to the timeliness of any of petitioner’s
habeas claims under 28 U.S.C. § 2244(d)(1).
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appears to contend that the pendency of the state petition constitutes good cause under Rhines.

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(ECF No. 11 at 2.) Petitioner argues that all of his claims are meritorious, and denies he has

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engaged in any dilatory litigation tactics.

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III. Applicable Law

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Proper exhaustion of state court remedies requires that each federal claim be presented to

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the state’s highest court. Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b)(1). Under

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Rhines, a district court may stay a mixed petition if the following conditions are met: (1) “the

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petitioner had good cause for his failure to exhaust,” (2) “his unexhausted claims are potentially

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meritorious,” and (3) “there is no indication that the petitioner engaged in intentionally dilatory

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litigation tactics.” Id., 544 U.S. at 278. The Supreme Court made clear that this option “should

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be available only in limited circumstances.” Id. at 277. Moreover, a stay under Rhines may not

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be indefinite; reasonable time limits must be imposed on a petitioner’s return to state court. Id. at

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277-78.

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The Rhines stay procedure may be applied both to petitions which contain only

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unexhausted claims and to petitions that are “mixed” -- that is, petitions containing both

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exhausted and unexhausted claims. See Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016).

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IV. Discussion

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A. Good Cause

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“The case law concerning what constitutes ‘good cause’ under Rhines has not been

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developed in great detail.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) (citing Blake v.

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Baker, 745 F.3d 977, 980 (9th Cir. 2014) (“There is little authority on what constitutes good

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cause to excuse a petitioner’s failure to exhaust.”)) The Supreme Court has addressed the

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meaning of good cause only once, stating in dicta that “[a] petitioner’s reasonable confusion

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about whether a state filing would be timely will ordinarily constitute ‘good cause’” to excuse his

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failure to exhaust. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines, 544 U.S. at

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278).

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The Ninth Circuit has provided limited guidance. Under Ninth Circuit law, the “good
cause” test is less stringent than an ‘extraordinary circumstances’ standard. Jackson v. Roe, 425
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F.3d 654, 661-62 (9th Cir. 2005). However, a petitioner cannot establish good cause simply by

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alleging that he was “under the impression” that his claim was exhausted. Wooten v. Kirkland,

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540 F.3d 1019 (9th Cir. 2008). Ineffective assistance of post-conviction counsel can constitute

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good cause for a Rhines stay. Blake v. Baker, 745 F.3d at 983. The Ninth Circuit concluded that

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the Rhines standard for cause based on ineffective assistance of counsel “cannot be any more

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demanding” than the cause standard required to excuse the procedural default of a habeas claim,

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as set forth in Martinez v. Ryan, 132 S. Ct. 1309 (2012). Blake, 745 F.3d at 983-84. Recently,

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the Ninth Circuit held that a total absence of post-conviction counsel will constitute good cause.

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Dixon, 847 F.3d at 721.

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Here, review of the California Supreme Court website2 confirms that petitioner is

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proceeding pro se in his state collateral challenge. Under Dixon, the absence of post-conviction

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counsel is sufficient to establish good cause for a stay under Rhines. See Dixon, 847 F.3d at 714,

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721.

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B. Potentially Meritorious Claims

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“A federal habeas petitioner must establish that at least one of his unexhausted claims is

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not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon, 847 F.3d at 722 (quoting

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Rhines, 544 U.S. at 277). A claim is “plainly meritless” only if “it is perfectly clear that the

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petitioner has no hope of prevailing.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). A

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petitioner satisfies this showing by presenting a “colorable” claim. Dixon, 847 F.3d at 722; Lucas

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v. Davis, 2017 WL 1807907, at *9 (S.D. Cal. May 5, 2017) (citing Dixon and using the

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“‘colorable claim’ standard to analyze whether a claim is ‘plainly meritless.’”).

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Here, in one claim, petitioner alleges that his sentence violates the Eighth Amendment
because he was only 18 at the time he was sentenced, Miller v. Alabama, 567 U.S. 460 (2012),

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The court may take judicial notice of facts that are “not subject to reasonable dispute
because it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on
official websites. Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir.
2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v.
Martel, 601 F.3d 882, 885 (9th Cir. 2010). The address of the official website of the California
state courts is www.courts.ca.gov.
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suggesting he was under 18 at the time of the underlying crimes, and states he has not been

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afforded a youthful offender hearing. It is unclear at this juncture that such claim is plainly

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meritless. Because such claim is “colorable,” see Cassett, 406 F.3d at 623-24, and not plainly

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meritless, this prong of Rhines is satisfied.3

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C. Intentionally Dilatory Tactics

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Finally, as a third factor to consider, the Supreme Court stated that “if a petitioner engages

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in abusive litigation tactics or intentional delay, the district court should not grant him a stay at

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all.” Rhines, 544 U.S. at 278.

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Here, there is no evidence of intentionally dilatory litigation tactics. Indeed, petitioner’s

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state habeas petition has been pending in the California Supreme Court since January 29, 2018.

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Thus, it appears that petitioner is presently exercising diligence in attempting to exhaust his

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claims.

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V. Conclusion

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For all of these reasons, petitioner’s motion for stay is granted. While the court grants

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petitioner’s motion for stay, petitioner is cautioned that he must promptly seek to lift the stay once

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the California Supreme Court addresses his petition. Rhines, 544 U.S. at 278 (District courts

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must “place reasonable time limits on a petitioner’s trip to state court and back.”). Thus,

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petitioner shall file a motion to lift the stay in this court within thirty days from the date the

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California Supreme Court issues a final order resolving his unexhausted claims.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for stay and abeyance (ECF No. 11) is granted;

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2. Within thirty days from the date the California Supreme Court issues a final order

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resolving the unexhausted claims, petitioner shall file in this court a motion to lift the stay; and

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The discussion of the potential merit of petitioner’s unexhausted claims is not a determination
of the merits of such claims.
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3. The Clerk of the Court is directed to administratively terminate this action.
Dated: May 10, 2018

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/tuck0035.stay

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