United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Richard Creatura United States Magistrate Judge
before the Court is petitioner's motion to stay. Dkt. 19.
Petitioner asks the Court to stay the action so that he can
exhaust his claims in state court. Id. In the
alternative, petitioner requests that the Court grant a
30-day extension to file his traverse. Id.
Respondent Ferguson opposes the motion to stay but does not
oppose the request for an extension. Dkt. 20.
petition contains only unexhausted claims and petitioner has
not shown that his claims have merit or that he acted with
diligence in failing to exhaust his claims in state court
prior to filing this action. Thus, the Court recommends
denying petitioner's motion to stay without prejudice.
The Court recommends granting petitioner's request for a
30-day extension to file his traverse.
federal habeas action consists entirely of unexhausted
claims. Dkt. 8. Petitioner concedes that he has not filed a
direct appeal or state habeas action because he was told by
his attorney that he took a deal, so he was unable to appeal
his conviction. Dkt. 8. A district court may stay a petition
if: (1) petitioner has “good cause” for failure
to exhaust the claims in state court; (2) the unexhausted
claims are potentially meritorious; and (3) there is no
indication that petitioner intentionally engaged in dilatory
litigation tactics. Rhines v. Weber, 544 U.S. 269,
278 (2005). The Court may stay a petition and hold the
proceedings in abeyance where the stay would be a proper
exercise of discretion. Rhines, 544 U.S. at 276.
argues that the motion should be denied because
Rhines does not apply to wholly unexhausted
petitions. Dkt. 20 at 2. However, the Ninth Circuit recently
held in Mena v. Long, 813 F.3d 907, 911 (9th Cir.
2016), that a district court has discretion to stay fully
unexhausted petitions under Rhines. Nevertheless, if
employed too frequently, stays and abeyances have the
potential to undermine the twin purposes of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) --
encouraging finality and streamlining federal habeas
proceedings because stays delay resolution and decrease the
incentive to exhaust all claims in state court prior to
filing the federal petition. Id. Therefore, stay and
abeyance should be available only in limited
circumstances.” Id. at 277. A stay is
generally appropriate only where the petitioner has not yet
exhausted claims in state court, the court determines there
was good cause for the failure to exhaust the claims, and the
unexhausted claims are not without merit. Id.
cause does not require “extraordinary
circumstances.” Wooten v. Kirkland, 540 F.3d
1019, 1023 (9th Cir. 2008). However, the failure to exhaust
based on reasons such as the petitioner believed that his
counsel included all of the issues raised before the
California Court of Appeal in his petition to the California
Supreme Court does not constitute good cause. Id.
Such a broad interpretation of “good cause” would
allow routine stays of habeas petitions and would undermine
the goals of AEDPA, which authorizes stays of such petitions
only in “limited circumstances.” Id. The
burden is on the petitioner to demonstrate good cause for his
failure to exhaust state court remedies, to show that the
unexhausted claims are not “plainly meritless, ”
and to demonstrate that he has not engaged in abusive
litigation tactics. Jackson v. Roe, 425 F.3d
654, 662 (9th Cir. 2005).
has not shown good cause for the requested stay under
Rhines. Although petitioner states he seeks a stay
to exhaust his remedies in state court, his motion focuses on
why he needs additional time to file his traverse. Dkt. 19.
Petitioner alleges that he is incarcerated, without legal
training and needs additional time to research the cases
cited by respondent Ferguson in his answer. Dkt. 19.
Petitioner also alleges that he was transferred between
prison facilities and was not in possession of his legal
property. Id. at 2. Petitioner fails to address
whether his unexhausted claims have merit, that good cause
exists for his failure to exhaust his claims in state court
before filing this federal habeas action, or that he has
acted with diligence. Thus, the Court recommends
petitioner's request for a stay be denied without
prejudice to filing a renewed motion for a stay, in which
petitioner may show how he satisfies the Rhines
Court recommends granting petitioner's request for an
extension to file his traverse, which respondent Ferguson
does not oppose. If this report and recommendation is
adopted, petitioner's traverse shall be due within 30
days of District Judge Leighton's order.
Clerk's office is directed to re-note the petition for
March 31, 2017, consistent with this report and
to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the
parties shall have fourteen (14) days from service of this
Report to file written objections. See also Fed. R.
Civ. P. 6. Failure to file objections will result in a waiver
of those objections for purposes of de novo review
by the district judge, see 28 U.S.C. §
636(b)(1)(C), and can result in a result in a waiver of those
objections for purposes of appeal. See Thomas v.
Arn, 474 U.S. 140 (1985); Miranda v. Anchondo,
684 F.3d 844, 848 (9th Cir. 2012) (citations omitted).